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

Last week, National Labor Relations Board Acting General Counsel Lafe Solomon issued a second report summarizing cases involving social media issues reviewed by his office. The report is a sequel to a similar report issued by the AGC in August 2011 – around the time we contributed a chapter on the subject to Jon Hyman’s excellent compilation “Think Before You Click: Strategies for Managing Social Media in the Workplace”. General Counsel Memorandum OM 12-31 (January 24, 2012) addresses fourteen (14) recent cases. 

The press release announcing the report reiterates two points made in the earlier survey:

• Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees.

• An employee’s comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees.

The Memorandum reports on these cases without any identifying information – party names, case numbers, locations, etc. – which somewhat limits its utility. This is especially so as the AGC concedes “that these cases are extremely fact-specific.”

 

The aforementioned Jon Hyman sees the report overall as “a mess.” He notes particular overreach in the Board’s treatment of an employer trying to assure employees, beyond any reasonable doubt, that its policy would not infringe upon rights protected by the NLRA:

Some believe employers can save themselves from the NLRB’s wrath simply by carving out section 7 rights from any social media policy. No so fast, says the NLRB. In one case, the NLRB even took issue with a “savings clause” in which the employer expressly told its employees that it would not interpret or apply its policy “to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively through representatives of their choosing, or to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, or to refrain from engaging in such activities.”

Of Jon’s other conclusions, I agree most with #2 and #4. I think that what we are seeing is not so much a conscious decision by the Board to over-regulate employer response to social media communication, but rather the natural extension of the current Board’s efforts to broaden the scope of employee and union rights under the Act. The Board majority’s expansions of “concerted” activity (Parexel International LLC, 356 NLRB No. 82 (Jan. 28, 2011), “reasonable construction” in the context of the Lutheran Heritage Village-Livonia test, and the range of inflammatory conduct which will retain its protection, are woven both expressly and implicitly throughout the reasoning explained in this report. These developments will continue to have impact on all types of employer work rules and policies – not only social media policies.

 

But social media remains the “hot topic,” as the report puts it.  Three social media cases are currently pending before the Board:  

• Hispanics United of Buffalo, Case No. 3-CA-27872 (ALJ, September 2, 2011): The ALJ  ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance. The ALJ held that “[e]xplicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7.” Moreover, the ALJ agreed with the General Counsel that the various Facebook postings at issue did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.
• Karl Knauz BMW, Case No. 13-CA-46452 (ALJ, September 28, 2011): The Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the social media postings for which he was fired did not constitute protected activity
• Triple Play Sports Bar, Case No. 34-CA- 12915 (ALJ, January 3, 2012): The Judge found that the employer unlawfully terminated two employees for participation in a Facebook conversation regarding their employer’s wittholding of taxes. The ALJ held that one employee’s endorsement of a wall post via the “Like” annotation and another employee’s singular use of a profane epithet toward the employer occurred amid a discussion of their tax treatment, and were thus protected.

Check back for additional information about these cases as they proceed.

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2011 was the most dynamic year in labor law in quite some time.  Fueling many of the changes last year were the impending departures of National Labor Relations Board Chairman Wilma Liebman and Member Craig Becker. With no certainty as to when Liebman or Becker might be properly replaced, the Board acted aggressively while it still held a pro-labor majority and a quorum. In addition to the Board’s activity, the Acting General Counsel pursued an expansive agenda. In response to these efforts, Republican opposition in Congress attempted to rein the Board in via additional oversight and legislative efforts that failed to gain much traction.

The labor attorneys here at Labor Relations Today have been following these significant developments every step of the way.  Today we are publishing "Labor Law in 2011: A Very Active Year in Review."  This brief summary highlights some of the most noteworthy developments in 2011.  We hope you find it a helpful resource as we head into what is already shaping up to be another "very active year." 

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Days after oral argument was heard in the National Association of Manufacturers (NAM) suit to enjoin the rule, the National Labor Relations Board has agreed to postpone the effective date of its new rule requiring all employers to post notices advising employees of rights under the NLRA.  

The Board announced today that it has determined that:

postponing the effective date of the rule would facilitate the resolution of the legal challenges that have been filed with respect to the rule. The new implementation date is April 30, 2012.  

The rule's effective date was previously postponed from November 14, 2011 to January 31, 2012.  Since that time, additional groups have filed suit seeking to invalidate the rule. 

More resources and commentary:

• "NLRB Final Rule Requires All Employers to Post Notice of NLRA Rights in the Workplace" -- Labor Relations Today (Aug. 25, 2011)
• "Move Along, Nothing to See Here" -- ShopFloor.org (NAM)
• "Union Election Rule Will Take Effect April 30, Labor Board Says" -- Bloomberg
• Related posts at the Connecticut Employment Law Blog and the Ohio Employer's Law Blog

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Last week, another National Labor Relations Board ALJ ruled in part for, and in part against, a Chicago area car dealership on a Board Complaint arising out of the employer's response to an employee's Facebook posts.  In Knauz BMW, the Judge found that the employer maintained a number of overly broad workrules in violation of Section 8(a)(1) of the Act.  The ALJ also held, however, that the employee's termination was lawful because the conduct for which he was fired did not constitute protected activity.

The employer's handbook policies included rules (a) prohibiting "Bad Attitude," (b) mandating "Courtesy," (c) prohibiting "Unauthorized Interviews", and (d) prohibiting employees from answering any "Outside Inquiries Concerning Employees."  The ALJ described them thus:

The allegedly unlawful provision of paragraphs (a) and (b) state: “A bad attitude creates a difficult working environment and prevents the Dealership from providing quality service to our customers” and “No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” Paragraphs (c) and (d) prohibit employees from participating in interviews with, or answering inquiries concerning employees from practically anybody. 

The ALJ applied the standards set forth in Lafayette Park Hotel, 326 NLRB 824, 825 (1998) and Lutheran Heritage Village- Livonia, 343 NLRB 646 (2004). questioning primarily whether "employees would reasonably construe the language to prohibit Section 7 activity."  He concluded that (b), (c) and (d) all violated the Act as they "clearly would be understood to restrict and limit employees in the
exercise of their Section 7 rights."

The Charging Party in the case had posted a number of photos and comments on his Facebook account involving the BMW dealership and a sister Land Rover dealership.  He had posted a series of sarcastic and critical posts about the perceived inferior food served at a sales event at his dealership.  Around the same time, he posted photos he had taken of a vehicle accident arising out of a test drive at the sister dealership with similarly snide commentary.  At least fifteen or sixteen of his co-workers were Facebook friends with access to these posts and many responded to them.

The ALJ held that the commentary -- rife with mockery -- about the food at the sales event was protected, as the success or failure of such an event might have a direct impact on employees' sales commissions.  He also concluded, however, that the Charging Party was not terminated because of these posts, but rather because of the posts regarding the Land Rover accident.  That behavior, he decided, was not protected: 

It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting.

Concluding that he was terminated solely for that incident, the ALJ held that the terminated did not violate the Act.

This is the second ALJ decision on a Complaint arising out of employer response to employee social media use.  Earlier this month, in Hispanics United of Buffalo, a judge ruled that a non-profit violated the Act by terminating employees for their Facebook posts regarding a co-worker's complaints.

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The House of Representatives today passed The Protecting Jobs From Government Interference Act (H.R. 2587) which would prohibit the National Labor Relations Board from ordering any employer to close, relocate, or transfer a business. The bill, introduced by Rep. Tim Scott (R-SC), on July 19, 2011 passed the House by a vote of 238-186.

The bill is aimed, in part, at stopping the NLRB from proceeding with its complaint against the Boeing Co. with respect to the opening of its new South Carolina facility.  By its terms, if it passes, the Act would apply to "any complaint for which a final adjudication has not been made by the date of enactment."  Rep. Scott was quoted in the Examiner:

“Today’s vote is important for our entire nation, as well as for my home district in South Carolina, where the NLRB is currently pursuing an agenda which, if successful, would kill thousands of jobs.... By removing the NLRB’s ability to dictate where private industry creates jobs, we are preventing an unelected, presidentially appointed government board from pitting state against state, inserting themselves into the business decisions of private companies, and scaring away investment in our nation.”

The bill passed largely along party lines -- as it did previously in Committee -- so it is little shock that House Democrats were quick to denounce the bill in strenuous terms.  The Education and the Workforce Committee Democrats posted on their website YouTube clips of Reps. George Miller (D-CA) and Robert Andrews (D-NJ) speaking critically of the bill on the House floor.

A related bill (S. 1523), introduced by Sen. Lindsey Graham (R-SC) is pending in the Senate.  

The Boeing case is currently proceeding before an NLRB administrative law judge in Seattle.

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On August 30, 2011,the National Labor Relations Board published a Final Rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. By its terms, the Rule was to become effective November 14, 2011.  The National Association of Manufacturers (NAM), however, last Thursday filed suit in the District Court for the District of Columbia, seeking to enjoin the Rule, alleging that it is "in excess of the Board's statutory jurisdiction, authority, limitations and rights."

The introduction to the Complaint tracks the language of Section 706(2)(C) of the Administrative Procedures Act, 5 U.S.C.§§ 701 et seq., which allows a reviewing court to set aside agency actions found to be so.  The Complaint highlights the Final Rule's identification of authority as Section 6 of the NLRA, which provides:

The Board shall have authority from time to time to make, amend, and rescind, in the manner prescribed by the Administrative Procedure Act [by subchapter II of chapter 5 of title 5], such rules and regulations as may be necessary to carry out the provisions of this Act.

NAM's pleadings argue that the Board's Final Rule exceeds this authority in at least four (4) specific ways:

1. In that neither Section 6 nor any other sections of the Act expressly grant the Board the authority to require the posting;

    

2. in that neither Section 6 nor any other sections of the Act grant the Board the authority to assert jurisdiction over, or require anything of, any employer absent the filing of a representation petition or unfair labor practice charge;

    

3. in that the Final Rule purports to create a new unfair labor practice -- while unfair labor practices are otherwise expressly enumerated and described in the statute; and

    

4. in that the Final Rule purports to extend the express six-month statute of limitations for filing charges in a manner inconsistent with the express exceptions set forth in the statute.

NAM's suit requests that the District Court enter judgment against the Board declaring that it exceeded its authority by promulgation of the Final Rule.  Additional relief requested includes preliminary and permanent injunctions against implementation and enforcement of the Rule. 

Employers should follow developments in this case, as absent an injunction, most private sector employers would be required to postthe required Notice in the workplace as of November 14, 2011.  No further action has been scheduled by the Court as of this moment, but we will update the blog accordingly as additional information becomes available.

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The first Administrative Law Judge ruling has come down in a social media case before the National Labor Relations Board.  In a September 2, 2011 decision in Hispanics United of Buffalo, 3-CA-27872, an ALJ has ruled that a Buffalo nonprofit organization unlawfully terminated five employees who had posted comments on Facebook in response to a co-worker's complaint about their job performance.

One of the employer's domestic violence advocates frequently complained about her co-workers not doing enough to help the organization's clients.  One Saturday, off-clock, at home, a co-worker posted a message on her own Facebook page identifying the employee's criticism and seeking her co-workers' opinions about it.  At least five co-workers responded, posting defenses and and commentary on staffing levels and other working conditions.  The postings, replete with profanity, culminated with one employee making reference to a group meeting with the employer's Business Manager -- ostensibly to discuss these issues. 

Days later, following a complaint by the employee who was the subject of the postings, the five employee posters were fired. 

The ALJ's analysis of the case makes express reference to the Board's Parexel International LLC decision, 356 NLRB No. 82 (Jan. 28, 2011), which broadly expanded the scope of protected "concerted activity" earlier this year.  He concluded that the five co-workers were engaged in protected activity, and thus their termination expressly for that activity -- as conceded by the employer -- violated Section 8(a)(1) of the Act:

... I conclude that the Facebook postings satisfy the requirements of that decision. The discriminatees herein were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management. By discharging the discriminatees on October 12, Respondent prevented them by taking any further group action vis-à-vis Cruz-Moore’s criticisms. Moreover, the fact that Respondent lumped the discriminatees together in terminating them, establishes that Respondent viewed the five as a group and that their activity was concerted. Whittaker Corp., supra

In sum, I conclude that the above cases control the disposition of the instant case. Just as the protection of Sections 7 and 8 of the Act does not depend on whether organizing activity was ongoing, it does not depend on whether the employees herein had brought their concerns to management before they were fired, or that there is no express evidence that they intended to take further action, or that they were not attempting to change any of their working conditions.

Employees have a protected right to discuss matters affecting their employment amongst themselves. Explicit or implicit criticism by a co-worker of the manner in which they are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true in this case, where at least some of the discriminatees had an expectation that Lydia Cruz-Moore might take her criticisms to management. By terminating the five discriminatees for discussing Ms. Cruz-Moore's criticisms of HUB employees' work, Respondent violated Section 8(a)(1).

Finally, the ALJ agreed with the General Counsel that the various Facebook postings did not lose the protection of the Act despite the fact that some were profane and/or sarcastic.

It is a brief decision, without many relevant facts in dispute, but which cites numerous earlier Board cases for similar propositions to those upon which this holding rests.  It is another more concrete step in the evolution of Board law on social media issues, however, as practitioners now have an adjudicated decision on these issues -- where previously we were left to speculate as to how they would be treated, based on a variety of complaints, advice memoranda and analogous rulings in other areas.

More resources and commentary:

• Our chapter in “Think Before You Click: Strategies for Managing Social Media in the Workplace,” Thompson Books
• Our May 18, 2011blog post on the issuance of Complaint in Hispanics United
• U.S. Chamber of Commerce Report: “A Survey of Social Media Issues Before the NLRB”
• General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases." -- Hispanics United is the first case discussed.

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Tomorrow the National Labor Relations Board will publish a final rule requiring private-sector employers subject to the National Labor Relations Act to post a notice to employees informing them of their rights under the Act. Specifically, the new rule requires that employers:

post notices to employees, in conspicuous places, informing them of their NLRA rights, together with Board contact information and information concerning basic enforcement procedures....

The extensive notice (the text of which is located at pages 185 to 190 of the Final Rule) expressly states: 

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The notice continues, listing several examples of unlawful behavior under the NLRA, and instructs employees how to contact the NLRB with questions or complaints.

Failure to post the notice may result in the NLRB finding that that the committed an unfair labor practice under Section 8(a)(1) of the NLRA by interfering with, restraining, or coercing employees in the exercise of the rights guaranteed by Section 7 of the Act.  The Board has also asserted that failure to post the notice may lead to the tolling of the six-month statute of limitations for unfair labor practice charges:

When an employee files an unfair labor practice charge, the Board may find it appropriate to excuse the employee from the requirement that charges be filed within six months after the occurrence of the allegedly unlawful conduct if the employer has failed to post the required employee notice unless the employee has received actual or constructive notice that the conduct complained of is unlawful.

Similar to postings required by the Department of Labor, the NLRB notice must be posted in conspicuous places where they are readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted. However, the NLRB is also requiring employers to post the notice electronically "on an intranet or internet site if the employer customarily communicates with its employees about personnel rules or policies by such means." A copy of the notice will be available on the NLRB's website, and employers have until November 14, 2011 to post the notice.  Federal contractors who already post the notice required by Executive Order 13496 will be deemed to be in compliance with the new Rule.

Additional Resources and Information:

• National Labor Relations Board fact sheet regarding the Rule
• DOL Notice already required for federal contractors
• Our blog post summarizing the February 11, 2011 House Committee hearings on the proposed rule
• Our Twitter feed's (@LRToday) transcript of its live-Tweeting of the House hearing

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Now that we've published a chapter on the topic in Jon Hyman's excellent collaboration “Think Before You Click: Strategies for Managing Social Media in the Workplace,” it seems everyone wants to issue reports on social media and the National Labor Relations Board.  Earlier this month, the U.S. Chamber of Commerce released its report, “A Survey of Social Media Issues Before the NLRB.”  Today, the Board itself got into the act, as Acting General Counsel Lafe Solomon has issued General Counsel Memorandum OM 11-74 (Aug. 18, 2011), a "Report of the Acting General Counsel Concerning Social Media Cases."

In his introduction to the report, AGC Solomon states:

This report presents recent case developments arising in the context of today’s social media. Social media include various online technology tools that enable people to communicate easily via the internet to share information and resources. These tools can encompass text, audio, video, images, podcasts, and other multimedia communications. Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media. All of these cases were decided upon a request for advice from a Regional Director.

I hope that this report will be of assistance to practitioners and human resource professionals.

We agree that there is enough information on these issues now out there that employers can assess and address potential exposure.  This report also does provide an interesting insight into the way Board personnel analyzed each of fourteen highlighted cases. 

It might be a little more help to practitioners and HR professionals to match up the unnamed case studies here with the Board cases at issue.  At a quick first glance, the first case outlined appears to be Hispanics United of Buffalo, Case No. 3-CA-27872; the second, the infamous American Medical Response of Connecticut, Inc., 34-CA-12576; the third, Karl Knauz Motors, Inc., Case No. 13-CA-46452; the fifth, Lee Enterprises, Inc., Case No.28-CA-23267; the sixth, JT's Porch Saloon, Case No. 13-CA-46689; the eighth,  Martin House, Case No. 34-CA-12950; and, the ninth,  Wal-Mart, Case No. 17-CA-25030.

Both this report and the U.S. Chamber's report are useful additional resources in this quickly developing area.  If you are interested in more information, please also check out "Think Before You Click" or register for the West LegalEd webinar on this topic next Wednesday, August 24.

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Regular readers of this blog are well-acquainted with the zeal with which the National Labor Relations Board has been addressing labor law issues arising out of employee use of social media.  You may have read our many posts on this topic, listened to this podcast, or even read our contribution to the book “Think Before You Click: Strategies for Managing Social Media in the Workplace.”

The U.S Chamber of Commerce has also recently issued a valuable resource – “A Survey of Social Media Issues Before the NLRB.”  The author of this report reviewed more than 129 NLRB cases which have involved social media in some way.   Indeed, many of these cases involve social media tangentially, most are at the very earliest stage of investigation, and others may lack merit entirely. But we agree with the Chamber that enough cases have advanced sufficiently to allow employers the opportunity to review their policies and practices for compliance. 

Among the astute observations in the Chamber’s study:

• The issues most commonly raised in the cases before the Board allege that an employer has overbroad policies restricting employee use of social media or that an employer unlawfully discharged or disciplined one or more employees over contents of social media posts.
• The issues raised with respect to employer discharge or discipline of employees based on their social media posts include the threshold matter of whether the subject of social media posts is protected by the Act, as well as whether the employer unlawfully threatened, interrogated, or surveilled employees.
• Additional issues revealed in our survey concern whether the employer bargained with an existing union over a social media policy and union communication using social media. It is, however, important to emphasize that a significant percentage of cases in our survey involved non-union employers with no union activity.

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.  Read the study in its entirety, and consider checking out our book.  I will also be participating in a webinar through West LegalEd Center on August 24, 2011, at 11:30 a.m. EST, along with Margaret DiBianca, Esq.  You can register for "Social Media and the National Labor Relations Act in the Unionized and Non-Unionized Workplace" here.

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The National Labor Relations Board unanimously found that a newspaper publisher committed unfair labor practices during a union organizing campaign -- rejecting the employer's novel argument that so doing would violate the First Amendment.  In Ampersand Publishing LLC d/b/a Santa Barbara News-Press, 357 NLRB No. 51 (Aug. 11, 2011), Chairman Wilma Liebman and Member Craig Becker, with Member Brian Hayes concurring on more limited grounds, rejected arguments that the employees’ actions were not protected because they dealt with editorial content rather than wages and benefits, and that the order would interfere with the publisher’s First Amendment right to control the newspaper’s editorial content.

According to the decision, the union organizing campaign began in the summer of 2006 after a number of journalists resigned from the newspaper to protest alleged interference with their reporting of the news.  Before filing a petition at the Board, the employees presented the newspaper with a letter making several demands, first among them:

We respectfully request that you…[r]estore journalism ethics to the Santa Barbara News-Press: implement and maintain a clear separation between the opinion/business side of the paper and the news-gathering side.

The letter also contained demands to recognize the union, to negotiate a contract and to invite the departed employees to return.  In the subsequent election, employees voted overwhelmingly in favor of representation by the Teamsters.

The Board rejected the employer’s preliminary defenses, noting that the employees did, in fact, demand recognition and bargaining regarding wages and hours – but also that the employees’ protest regarding editorial conduct was protected in itself.  The Board explained:

The newsroom employees’ concerted actions were not in protest against a change in the editorial stance of the paper—whether to endorse the Democratic or Republican candidate for mayor, for example. Rather, they were in protest against decisions that limited the autonomy they had previously enjoyed to report the news according to what they believed were professional norms. Restrictions on their autonomy and threats to their professional ethics directly implicated their interests as employees.

Similarly, the Board rejected the employer’s First Amendment argument that the employees had only “invoked the [National Labor Relations] Act as a regulatory means to gain control over the content of the newspaper.”  Noting that editorial content is a non-mandatory subject of bargaining, the Board explained that the employer would have recourse against its employees and their union representative if they insisted to impasse upon proposals which would implicate such.  But the Board declined to issue a decision here based upon “what may come to pass in the future.”

Ultimately, the Board held:

The judge found that the Respondent engaged in an extensive campaign of retaliatory conduct against employees because they exercised their rights to seek union representation and to join together for their mutual aid or protection. Our order remedies that unlawful conduct.

The Board ordered the employer to reinstate and make whole a number of discriminatees.  Chairman Liebman and Member Becker also ordered that a senior management official read, or be present at the reading to the employees of, the complete NLRB notice to be posted.

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The second episode of a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast airs this morning.  Following up on last Friday's episode, I join Jon Hyman (Ohio Employer's Law Blog; @jonhyman), Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of issues covered in our new book -- now entitled, Think Before You Click: Strategies for Managing Social Media in the Workplace.

Both installments of the podcast are also available for on-demand listening at The Proactive Employer and via iTunes.

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This month, the National Labor Relations Board Division of Advice has issued three Advice Memoranda recommending dismissal of unfair labor practice charges arising out of employee use of Facebook.  In all three cases, the Division explained that the misconduct for which the employees were terminated did not constitute protected concerted activity, but were rather more appropriately considered personal gripes outside the protection of the Act. 

In JT's Porch Saloon, Case No. 13-CA-46689 (July 7, 2011), a bartender was fired after posting comments in a Facebook conversation with his sister expressing his hope that his employer's "redneck" customers would "choke on glass as they drove home drunk."  None of his co-workers participated in the Facebook conversation, but days later, his employer terminated him (ironically, perhaps, via Facebook message).

In Wal-Mart, Case No. 17-CA-25030 (July 19, 2011), an employee was terminated after he took to his Facebook page to express frustration and insult his Assistant Manager.  Among other things, he called the Assistant Manager a "puta" and declared that her criticisms of his work were "retarded."  He concluded his manifesto with the exclamation that Walmart could "kiss [his] royal white ass."  Although co-workers responded to his posts, they were expressions of individual support -- not group action.  For example, one wrote: "hang in there."

Finally, in Martin House, Case No. 34-CA-12950 (July 19, 2011), a Recovery Specialist at a non-profit residential facility for the homeless was terminated for posting inappropriate comments about residents.  One night, while on the clock, the employee posted a series of comments about how "spooky" the institution was, the "voices" her clients hear, and how they would "just pop meds."  Interestingly, none of the participants in the Facebook conversation were co-workers -- and indeed, none of her co-workers were even Facebook friends of the employee.    

In analyzing all these cases, the Division of Advice reiterated the appropriate Board standards for finding conduct to be protected concerted activity.  Stated most thoroughly in the Wal-Mart memo:

An individual employee’s conduct is concerted when he or she acts “with or on the authority of other employees,” when the individual activity seeks to initiate, induce, or prepare for group action, or when the employee brings “truly group complaints to the attention of management.”  Such activity is concerted even if it involves only a speaker and a listener, “‘for such activity is an indispensable preliminary step to employee self-organization.’”  On the other hand, comments made “solely by and on behalf of the employee himself” are not concerted

None of the conduct described in the three cases above met that standard.  The employee in Wal-Mart was clearly complaining about his own relationship with the Assistant Manager, which seemed to be reinforced by the comments of his co-workers.  The employee in JT's Porch was simply venting his personal frustration at work by making derogatory remarks about his customers. Similarly, the employee in Martin House was making insensitive -- if less offensive -- comments about the employer's clientele.  Accordingly, the Division found this conduct was not protected, and therefore that the employees' terminations did not violate the Act.

In an earlier post on the Board's developing line of cases on Social Media, I noted that a trend was clearly emerging on this issue:

The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.

For more on how the Board has been approaching these cases, you can also check out the chapter I contributed to the Thomson publication "Think Before You Click: Strategies for Managing Social Media in the Workplace" which just hit electronic bookshelves last week.

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Regular readers of the blog are familiar with the intensity with which the National Labor Relations Board has recently pursued complaints against employers arising out of employee use of social media.  I recently had the opportunity to contribute a chapter on this topic to an upcoming Thompson publication, HR and Social Media: Practical and Legal Guidance, which should be on bookshelves within days. 

In advance of the publication, you should tune in for a special two-part edition of Stephanie Thomas’s Proactive Employer Podcast, during which I join the book's editor, Jon Hyman (Ohio Employer's Law Blog; @jonhyman), as well as Molly DiBianca (Delaware Employment Law Blog; Going Paperless; @MollyDiBi), Eric Meyer (The Employer Handbook Blog; @Eric_B_Meyer), Phil Miles (Lawffice Space; @PhilipMiles), Rob Radcliff (Smooth Transitions; @robradcliff), and Dan Schwartz (Connecticut Employment Law Blog; @danielschwartz), to discuss a variety of related issues.

Part 1 airs on BlogTalkRadio at 8:30 AM on Friday, July 22; part 2 at 8:30 AM on Friday, July 29. Both installments will be available for on-demand listening at The Proactive Employer and via iTunes.

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On the heels of the National Labor Relations Board's proposed rulemaking to shorten the time period between the filing of a representation petition and the holding of an election, Cornell Professor Kate Bronfenbrenner has issued a new study entitled "The Empirical Case for Streamlining the NLRB Certification Process: The Role of Date of Unfair Labor Practice Occurrence."  Along with Columbia professor, Dr. Dorian Warren, Professor Bronfenbrenner has published the eight page "working paper" in support of the Board's effort to drastically limit the pre-election campaign period.

Like the Professor's earlier works in support of similar efforts, like the Employee Free Choice Act, the study is unabashedly partisan.  As in her earlier works, "No Holds Barred: The Intensification of Employer Opposition to Organizing." and "Uneasy Terrain: The Impact of Capital Mobility on Workers, Wages, and Union Organizing," the Professor assumes all allegations of unfair labor practices to have actually occurred, and conflates any and all legitimate employer response to organizing with unlawful coercion and intimidation.  Again, the Professor suggests here that all of the anecdotal data studied came exclusively from interviews with union organizers -- yet there is no effort to discount the obvious biases likely held by this self-interested population. 

No matter.  This study -- like those before it -- is likely to be widely cited by proponents of the Board's current effort to eliminate lawful employer speech in response to union organizing efforts.  The paper's introduction may provide a telling window into where supporters would like to see the time limits drawn:

Our analysis of Bureau of National Affairs (BNA) data from 1999-2009 found that in the last two years there has been a slight increase in the number of representation elections being held between 21-30 days after the petition.  But throughout the decade there have been virtually no election dates in the first 20 days after the petition is filed.  Thus, while the NLRB has made some progress in meeting their performance objectives, as former NLRB General Counsel Fred Feinstein explains, "the problem has been that a party in any election case has the ability to undermine the expression of employee free choice by manipulating the Board procedures to create delay."

More cases being held within 21-30 days is "some progress," but bottom line -- proponents of the Board's proposed measures still consider more than 20 days to be "delay."

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Just two months after the Supreme Court's decision in AT&T Mobility v. Concepcion, in which the Court held that the use of class arbitration waivers in consumer contracts are permissible even when they conflict with state law, the National Labor Relations Board has invited interested parties to file briefs regarding whether an employer violates Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing an arbitration agreement with its employees that denies the arbitrator any authority to fashion the proceeding as a class or collective action.  On June 16, 2011, the Board issued a Notice and Invitation to File Briefs on this issue in the case of D. R. Horton, Inc., Case No. 12-CA-25764.

Exactly one year earlier, on June 16, 2010, Ronald Meisburg, the NLRB's General Counsel at the time, issued a guideline memorandum for unfair labor practice charges involving employers' mandatory arbitration policies. In the memorandum, the General Counsel concluded that so long as the arbitration agreement does not require the arbitration of claims under the National Labor Relations Act:

[e]mployers...may require individual employees to sign a...waiver of their right to file a class or collective claim without per se violating the Act. So long as the wording of these agreements makes clear to employees that their right to act concertedly to challenge these agreements by pursuing class and collective claims will not be subject to discipline or retaliation by the employer, and that those rights— consistent with Section 7—are preserved, no violation of the Act will be found.

However, in the Board's recent Notice in the D. R. Horton  case, the NLRB asks interested amici to file a brief addressing the following issue:

Did the Respondent violate Section 8(a)(1) of the Act by maintaining and enforcing its Mutual Arbitration Agreement, under which employees are required, as a condition of employment, to agree to submit all employment disputes to individual arbitration, waiving all rights to a judicial forum, where the arbitration agreement further provides that arbitrators will have no authority to consolidate claims or to fashion a proceeding as a class or collective action?

As such, it appears that the Board may not agree with the former General Counsel's analysis, and may find that arbitration agreements precluding class or collective action arbitrations violate Section 8(a)(1) of the Act.

The deadline for amici briefs is July 20, 2011. The parties may then file responsive briefs on or before August 3, 2011.

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Last week in Supply Technologies, LLC, Case No. 18-CA-19587 (May 31, 2011), Administrative Law Judge George Alemán found that the employer’s implementation of an alternative dispute resolution program unlawfully interfered with its employees’ right of access to the Board’s processes under Section 7 of the National Labor Relations Act.

The decision noted that the alternative dispute program did not explicitly restrict employees’ Section 7 activity, but a policy may still violate the NLRA if "employees would reasonably construe the language of the rule or policy to prohibit Section 7 activity." In drawing his conclusion the judge was required to "give the rule or policy in question a reasonable reading, and…refrain from reading particular phrases in isolation or presuming improper interference withemployee rights."

In this particular case, the employer's documents explained that the program's grievance arbitration procedure was to be the sole method for employees to "resolve all of their disputes, controversies, and claims," including "claims for discrimination, harassment, or retaliation" -- with the exception of workers compensation claims, unemployment claims, and criminal claims. Although the program provided that an employee could "still file a charge or complaint with a government agency" and was "free to cooperate with a government agency that might be investigating a charge or complaint," the program required the employee to "waive[] any right [he/she] might have otherwise had to any remedy that the agency might try to obtain on [his/her] behalf (to the extent this is permissible under law.)"

Finding these statements conflicting and ambiguous, the ALJ held that the program’s waiver requirement rendered meaningless whatever rights employees purportedly had under the program to file a charge with the NLRB. While there appeared to be some effort to include a disclaimer in the parenthetical quoted above, this language did not appear in other related documents setting forth the terms of the program.  As a result, the ALJ resolved the ambiguities against the employer as promulgator of the program, and determined that it had a chilling effect on employees’ willingness to exercise their Section 7 rights to file a charge with the Board.

Accordingly, employers should be mindful when creating and/or reviewing alternative dispute programs to ensure that they do not expressly limit employees’ right of access to the NLRB and its processes.  Moreover, they should eliminate any ambiguity or inconsistencies in their applications, forms, acknowledgments or other related documents by which employees might reasonably construe the program to prohibit Section 7 activity.

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Liz Mullen of the Sports Business Journal (subscription) is reporting today that Region 2 of the National Labor Relations Board has sent the unfair labor practice charge filed against the NFLPA by the NFL to the Division of Advice in Washington, D.C. 

Back in February, the NFL owners filed the charge (subsequently amended) against the NFLPA, alleging that the union had failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act.   The text of the charge, filed at the Regional Office in New York City, accused the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."  The charge described the alleged misconduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct  indicating a lack of "intent to reach agreement through good faith collective bargaining.  Finally, the charge spelled out the heart of the NFL's concern -- the NFLPA's strategy of coordinating a decertification in order to obtain a strategic advantage in their negotiations -- which is now also at the heart of the antitrust litigation playing out in the Court of Appeals for the Eighth Circuit.

The Region's referral to the Division of Advice is not terribly unique, especially given the stakes involved here.  The Division of Advice, under the auspices of the Office of the General Counsel in Washington, D.C., consists of three branches: The Regional Advice Branch, the Injunction Litigation Branch, and the Legal Research & Policy Planning Branch.  This matter is obviously now before the Regional Advice Branch which will research, analyze and provide "advice" to the General Counsel and the Regional Office with respect to whether the charge is worth pursuing.  Following this review -- perhaps a few weeks or months hence -- the Division will likely issue an Advice Memorandum to the Regional Director recommending either issuance of a complaint or dismissal of the charge absent withdrawal. 

As a practical matter, in the instant dispute between the NFL and the NFLPA, this is not likely to have much impact.  We are likely to see an Eighth Circuit decision in the court litigation before we see the results of this review by Advice.  It certainly does not hurt the owners' position in ongoing negotiations in that the PR of an outright dismissal by the Regional Office might have had an impact on their leverage.  And, to some extent, the NLRB's referral to Advice does undermine the certainty of District Court Judge Susan Nelson's conclusions about what the Board was likely to do when she granted the players an injunction against the owners' lockout back in late April.  But this fairly routine decision by the Regional Office certainly did not shift any significant leverage toward one side or the other in this ongoing legal battle.

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The National Labor Relations Board has declared lawful the union practice of displaying large inflatable rat balloons at a secondary employer’s premises to protest the labor practices of a separate non-union contractor.  Upon remand from the U.S. District Court for the District of Columbia, in Sheet Metal Workers Local 15 (Brandon Regional Medical Center), 356 NLRB No. 162 (May 27, 2011), a 3-1 Board majority extended the rationale set forth in Carpenters Local 15006 (Eliason & Knuth of Arizona, Inc.), 355 NLRB No. 159 (2010), which found a union's display of large stationary banners at a secondary employer's premises  -- a hospital -- was not unlawful.

Section 8(b)(4) of the National Labor Relations Act prohibits conduct found to “threaten, coerce, or restrain” a secondary employer not directly involved in a primary labor dispute, if the object of that conduct is to cause the secondary to cease doing business with the primary employer.  "Picketing" that seeks a consumer boycott of a secondary employer is generally considered unlawfully coercive. Simple handbilling with the same object is, on the other hand, generally protected speech. 

The Board majority here found that the balloon display -- a giant, rabid rat -- did not involve "confrontational conduct," and was thus unlike picketing.   The majority noted that the union agents did not move, shout, impede access, or otherwise interfere with the hospital’s operations.  The Board concluded that much as the mock funeral procession with coffin and costumed Grim Reaper that the union staged outside the hospital:

[the] rat balloon itself was symbolic speech.  It certainly drew attention to the Union’s grievance and cast aspersions on [the contractor], but we perceive nothing in the location, size or features of the balloon that were likely to frighten those entering the hospital, disturb patients or their families, or otherwise interfere with the business of the hospital.

By the combination of holdings in Eliason & Knuth, its progeny, and now this case, the Board has significantly eviscerated the secondary boycott provisions of the Act.  Now, so long as the union does not place the signs or huge protest objects on sticks or include "moving" supporters in connection with the display, the Board appears content to allow a union to apply pressure upon neutral employers at their places of business. 

Member Brian Hayes dissented:

Considered in the abstract, or viewed from afar, the display of a gigantic inflated rat might seem more comical than coercive.  Viewed from nearby, the picture is altogether different and anything but amusing. For pedestrians or occupants of cars passing in the shadow of a rat balloon, which proclaims the presence of a “rat employer” and is surrounded by union agents, the message is unmistakably confrontational and coercive.

Ironically, the inflatable rat used by unions in these protests is manufactured in Plainfield, Illinois -- in a non-union shop.

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Two days after issuance of the complaint in Hispanics United of Buffalo, Case No. 3-CA-27872, the National Labor Relations Board issued another complaint against a company for a termination arising out of employee use of social media.  In Karl Knauz Motors, Inc., Case No. 13-CA-46452, the Board alleges that a car dealer unlawfully fired a salesperson for Facebook comments critical of the employer.

Paragraph IV of the complaint reads simply:

(a) On or about June 14, 2010, Charging Party Becker posted on his Facebook page employees' concerted protest and concerns about Respondent's handling of a sales event which could impact their earnings.

(b) On or about June 22, 2010, Respondent discharged Charging Party Becker.

(c) Respondent engaged in the conduct described above in paragraph IV(b) because Charging Party Becker engaged in the conduct described above in paragraph IV(a) and to discourage employees from engaging in these or other concerted activities.

This is just the latest in a recent string of cases handled by the Board arising out of employer efforts to control employee social media use which might impact its interests.  Recognizable patterns are starting to emerge in the Board's treatment of these cases:

• The Board will take an aggressive approach toward workrules and policies -- including social media policies -- which are arguably "overly broad," or might be interpreted to restrict employees' in the exercise of protected, concerted activity.
• The Board will consider "protected" any social media postings which are either made on behalf of other employees or made with the object of inducing or preparing for group action.  This is a broad, and currently expanding, standard.
• Simple personal attacks posted off-the-clock, outside the workplace -- even offensive or profane insults -- may retain the protection of the Act if they even arguably arise out of concerted activity, terms or conditions of employment, or other alleged ULP's. 

Employers would be wise to review their social media policies in light of the Board's evolving approach and these principles.

 

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The National Labor Relations Board has issued another complaint arising out of employee discipline for use of social media. The Board published a press release this evening announcing that a complaint was issued May 9, 2011 by the Regional Director in Buffalo, New York against Hispanics United of Buffalo, a nonprofit organization.  The complaint alleges that the employer unlawfully discharged five employees after they criticized working conditions on Facebook. 

While the complaint is not yet posted on the NLRB website as of this date, the Board's press release indicates that five employees responded to a co-worker's Facebook post with comments defending their job performance and criticizing working conditions, including work load and staffing issues. These employees were subsequently terminated by the employer who claimed their comments constituted harassment of a co-worker involved.  The press release states:

The complaint alleges that the Facebook discussion was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act, because it involved a conversation among coworkers about their terms and conditions of employment, including their job performance and staffing levels. 

A hearing is set before an administrative law judge on June 22, 2011, in the Buffalo Regional Office.

This is just the second complaint issued by the Board arising out of social media issues, although a number of similar charges have recently settled prior to issuance of a complaint.  In April, various media outlets reported that the New York Regional Office had notified Thomson Reuters that it was preparing to issue a complaint including an allegation that the publisher improperly warned a union officer about a Twitter post.  The employee's union, the New York Newspaper Guild, recently announced a comprehensive contract settlement which included resolution of the charge.  On April 27, 2011, the San Francisco Regional Office also announced settlement of a charge against an online construction retailer who terminated an employee who had posted comments on Facebook about alleged labor code violations.  Finally, late that month, the Division of Advice also issued an Advice Memorandum recommending dismissal of a Twitter-based charge, perhaps providing further guidance regarding the Board's approach to these cases.

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On April 21, 2011,the Division of Advice issued an Advice Memorandum recommending dismissal of a charge alleging that a newspaper reporter was unlawfully terminated for Twitter posts – some of which involved his employer. In Lee Enterprises, Inc., Case No.28-CA-23267, the employer, the Arizona Daily Star newspaper, had no written social media policy. During 2010, the charging party, a public safety reporter, posted Twitter messages mocking the employer’s sports editors, joking about homicides in Tucson, Arizona, and insulting other local media outlets.

After forbidding the employee to Tweet about “anything work-related” pending the outcome of an investigation, the employer ultimately suspended and then fired him.  His termination notice read, in part:

Despite the multiple warnings, suspension and final verbal notice issued as recently as February 2010, when you were told to refrain from using derogatory comments in any social media forums that may damage the goodwill of the company, you have again disregarded that guidance.

The Division of Advice concluded that the reporter’s termination did not violate Section 8(a)(1) of the Act because his inappropriate Twitter posts “did not involve protected concerted activity.”  More specifically, the Division noted that his posts did not relate to the terms and conditions of his employment, nor did he seek by these posts to involve other employees in issues related to employment.

The Division expressed some concern that the employer made overly broad statements to the employee that could be interpreted to prohibit Section 7 activities. Among these were a warning “to stop airing his grievances or commenting about the Employer in any public forum,” the instruction not to tweet about “anything work-related,” and the termination notice’s reference to “derogatory comments in any social media forums.”  On balance, however, the Division declined to consider these comments to constitute a verbal “rule” or policy. Rather, they were made solely to the charging party in the context of otherwise lawful discipline, and were not communicated to a broader audience of employees.

Perhaps the most interesting element of the Advice Memorandum, however, is a discussion which would appear to be dicta. Although the General Counsel’s office clearly indicated it did not find an unlawful overly broad social media policy at issue in the case, it suggested strongly that it still would have considered the charging party’s termination lawful under such a policy. After acknowledging that the Board has consistently held that “an employer’s imposition of discipline pursuant to an unlawfully overbroad policy or rule constitutes a violation of the Act,” the Memorandum clarifies that discipline pursuant to an overbroad rule has been held to be unlawful “only where the underlying conduct involved Section 7 activity.” 

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Law360 (subscription) reports today on a Complaint issued by the NLRB against the California Nurses Association for unilaterally printing a statement regarding employee "Weingarten Rights" on the inside cover of its CBA with various healthcare institutions.  The Complaint alleges that this conduct violates the employees' rights to refrain from union activity, as well as the Act's requirement that parties refrain from unilateral modifications to the terms of their agreements.  From Law360:

Printing the rights on collective bargaining agreements implies that employees must have a union representative present, impeding their right to choose to avoid unions altogether, the complaint says. Moreover, including the text on the agreements without the employers' permission amounts to unilaterally altering the terms and conditions of employment, the office claims.

  *  *  *

The 227-bed Henry Mayo Newhall Memorial Hospital filed an unfair labor practice charge against the union in October. The CNA has represented the hospital's full-time, part-time and per diem registered nurses since 2000, the complaint says.

The hospital and the union signed off on a collective bargaining agreement in April 2009, and the union was supposed to print up copies for the employees but instead distributed copies to employees that include a copy of the Weingarten Rights printed on the back, according to the complaint.

The hearing in this case is scheduled for August 1, 2011 in Los Angeles.

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• NLRB Complaint
• "Boeing to Fight NLRB Complaint Backed by Union" -- Boeing press release
• "South Carolina Lawmakers Livid About Boeing NLRB Complaint" -- Fox News blog
• "Former NLRB Chairman Says NLRB Complaint Against Boeing is Unprecedented" -- Washington Examiner
• "Criticisms Mount Against NLRB's Attack Against Boeing, Business" -- NAM's Shopfloor.org
• "State, Local Leaders Join Together to Keep Boeing in S.C." -- WCSC-TV News 
• "NLRB Dictates Boeing Operational Plans" -- HotAir
• "Labor Board Tells Boeing New Factory Breaks Law" -- New York Times
• "NLRB Issues Complaint Over Boeing's Move to S.C." -- AFL-CIO Now blog
• "Boeing Should Move 2nd Line to Washington, U.S. Board Says" -- Daily Caller
• "DeMint Blasts NLRB Complaint Against Boeing and Right-To-Work States" -- LibertyPundits
• "Union-Controlled NLRB Issues Complaint Against Boeing for Transferring Work to a Non-Union Facility" -- LaborUnionReport.com
• "NLRB Cites Boeing for Illegal South Carolina Move" -- IAMAW website
• "National Labor Relations Board Seeks to Force Boeing to Direct Work" -- Sheppard Mullins Labor & Employment Law blog

 

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In a decision issued on March 31, 2011, National Labor Relations Board Chairman Wilma Liebman suggested that she would like the Board to require employers to provide information about relocation decisions to unions in a broader range of cases.  In Embarq Corp., 356 NLRB No. 125 (March 31, 2011), the Board unanimously concluded that the employer was not required to negotiate with a union over its decision to close a call center in Las Vegas and relocate the work to a call center in Florida. 

In deciding whether an employer's relocation decision is a mandatory subject of bargaining, the Board applies standards set forth in Dubuque Packing Co., 303 NLRB 386 (1991).  The General Counsel must first establish that the decision involves a relocation of unit work "unaccompanied by a basic change in the nature of the employer's operation."  If this prima facie burden is met, there are a number of ways by which the employer may rebut the presumption that it must bargain over the move.  One such way is if the employer can establish:

(1) that labor costs (direct and/or indirect) were not a factor in the decision or (2) that even if labor costs were a factor in the decision, the union could not have offered labor cost concessions that could have changed the employer’s decision to relocate.

In Embarq, the Board concluded that labor costs absolutely were a factor in the employer's decision, but that the employer had proven that "the Union could not have offered labor-cost concessions sufficient to alter the... decision to relocate."  As a result, the employer did not have to bargain over its decision and the related complaint allegations were dismissed.

Chairman Liebman agreed with the conclusion, and noted that because the issue was not a mandatory subject of bargaining, under existing Board law the employer was not obligated to provide the union with information regarding the relocation.  She wrote a separate concurring opinion, however, to highlight her view that:

neither the after-the-fact attempt to assess whether bargaining might have been successful, nor the attempt, years later, to restore the status quo in those cases where the Board finds a bargaining violation, are constructive for any of the parties concerned.

Instead Chairman Liebman would place the initial burden on employers at the time of the decision to justify the decision.  The Chairman would require employers to timely notify unions whether or not a relocation plan turns on labor costs; to explain to the union the basis for any non-labor-cost move; and, to provide information to the union regarding any labor-cost savings.  In the Embarq case, no party asked the Board to revisit any of these issues.  Still, after explaining her thoughts, in concluding her opinion, the Chairman notes:

...in a future case, I would be open to modifying the Dubuque framework in connection with union requests for information.

Unionized employers contemplating a relocation of work any time soon would be well-served to give this concurring opinion careful thought.

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In a vigorous dissent to the 2007 Board decision, Guard Publishing Co., d/b/a The Register-Guard, 351 NLRB 1110 (2007), current Chairman Wilma Liebman declared:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

In the latest example of the National Labor Relations Board's efforts in this regard, various sources are reporting that the Regional Office for Region 2 is prepared to proceed with a case against a publisher for maintaining a social media policy which it alleges unlawfully restricted an employee's use of Twitter to criticize the employer.   The New York Times reports, and theunion representing the employee confirms, that the Regional Office has notified the parties that, absent settlement, it will be issuing a complaint.  Per the Times: 

The board asserts that the company’s Reuters news division violated the reporter’s right to discuss working conditions when her supervisor reprimanded her for posting a message on the Twitter service that said, “One way to make this the best place to work is to deal honestly with Guild members.”

The author of the post, Deborah Zabarenko, the agency’s environmental reporter in Washington and the head of the Newspaper Guild at Reuters, sent that to a company Twitter address after a supervisor had invited employees to send postings about how to make Reuters the best place to work.

What is unclear from the NYT report is that the Twitter posting was public -- and not a "DM," or private "Direct Message" in Twitter parlance.  Labor attorney Eric B. Meyer has posted this screen cap of how the message appeared in her employer's Twitter feed:

While we have not yet seen any draft or intended complaint, the Times account suggests that the employee was not actually disciplined.  Accordingly, it would seem that the Board is alleging that the employee was chilled in the exercise of her rights under the Act by her supervisor's alleged phone call to her and/or the mere maintenance of an allegedly "over broad" social media policy.  

The union which filed the ULP charge likewise suggests that the complaint would allege the employer violated the law by both:

• Illegally implementing restrictions on employees’ use of social media that would chill federally protected speech about working conditions (a violation of Section 8(a)1).

• Applying the illegal Twitter policy to a Guild-represented employee (another 8(a)1 violation). 

While the more widely discussed American Medical Response case involved an employee fired for a Facebook posting about her supervisor, the more recent Student Transport of America case alleged that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" a specific social media policy in its employee handbook.  There was no actual discipline imposed by the employer in the latter case.  Both cases settled  -- Student Transport prior to the issuance of a complaint.

The union reports the NLRB's threatened complaint in this case covers significant issues regarding the parties' collective-bargaining negotiations -- of far broader import than a single Tweet by an employee.  Indeed, the union describes the complaint as "massive."  As a result, the seemingly relatively minor Twitter allegations may be settled out, robbing us again of a definitive Board Decision and Order on these issues.  But at this rate, it won't be long before another social media charge is taken up for further consideration.

More commentary and resources:

• "Another Social Media Skirmish: Discipline for a Tweet Gets the NLRB Involved" -- Eric B. Meyer on TLNT
• "NLRB Set to Move Against TR" -- The Newspaper Guild of New York
• "Labor Disputes Arising out of Social Media" -- Law.com (Sept. 28, 2010)

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In a 3-1 decision published Friday, the National Labor Relations Board has adopted a new access standard for the employees of a contractor wishing to engage in Section 7 activity on the property of a third party where they regularly work.  In New York, New York LLC d/b/a New York New York Hotel & Casino, 356 NLRB No. 119 (March 25, 2011), the Board held:

We address only the situation where, as here, a property owner seeks to exclude, from nonworking areas open to the public, the off-duty employees of a contractor who are regularly employed on the property in work integral to the owner's business, who seek to engage in organizational handbilling directed at potential customers of the employer and the property owner.  

We conclude that the property owner may lawfully exclude such employees only where the owner is able to demonstrate that their activity significantly intereferes with his use of the property or where exclusion is justified by another legitimate business reason, including, but not limited to, the need to maintain production and discipline....

The employees at issue worked for a food service contractor that operated three restaurants and a food court outlet in the interior premises of a Las Vegas casino.  Employees of the contractor working on the casino's premises began organizing efforts on behalf of the union representing the casino's own food service workers.  Off-duty employees of the contractor began entering the casino's public areas -- mostly in front of the contractor's outlets -- and distributing handbills to patrons, asking them to urge the contractor to recognize and bargain with the union.  The casino regularly called Las Vegas police to remove these individuals from the premises.

Back in 2001, the Board found an 8(a)(1) violation against the casino, but the casino petitioned the Court of Appeals which remanded the case for further consideration.  In 2007, the Board accepted amicus briefs and held oral argument, as a result of which, it has now announced this new standard. 

The Board opines here that the contractor's employees do not fit neatly into either category if forced to resolve their rights by considering them as employees of the property owner under the long-standingRepublic Aviation standards or by considering them as non-employee organizers subject to the standards set forth in the Lechmere case.  The Board, nevertheless, viewed the contractor's employees more like employees of the property owner in its analysis.  The Board certainly found compellingthe evidence here that the contractor's employees worked throughout the casino's premises, patronized the same break areas, and provided room service to the casino's hotels. 

The Board recognized that the contractor's employees' Section 7 interests were most compelling, as they were involved in organizing themselves directly.  Balancing this against the property owner's property and managerial rights, the Board concluded that the property owner's interests must give way.  While acknowledging that the property owner absolutely had state property law rights to exclude the off-duty individuals from its property, the Board suggested that the property owner failed to fully protect those rights against the contractor's employees' interests by obtaining language in its leases to address the issue.

Member Hayes filed a dissent asserting that the majority's analysis "pays only lip service to the owner's property interests, and gives no consideration to the critical factor of alternative means of communication."   He would have found a violation only where the casino ejected off-duty employees from the porte-cochere area near the casino's main entrance.     

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The National Football League today filed an unfair labor practice (ULP) charge against the NFL Players Association, alleging that the union has failed to bargain in good faith with the league in violation of Section 8(b)(3) of the National Labor Relations Act.   The text of the charge, filed at the Regional Office for Region 2 in New York City, accuses the union of engaging in unlawful "surface bargaining and an anticipatory refusal to bargain."

More specifically, the charge describes the union's alleged unlawful conduct to include failure to schedule sessions, failure to respond to management proposals in a timely and meaningful manner, insisting upon the disclosure of financial data as a condition to negotiations, and additional conduct  indicating a lack of "intent to reach agreement through good faith collective bargaining."

The charge continues, to spell out the heart of the NFL's concern -- the NFLPA's long apparent strategy of coordinating a decertification in order to obtain a strategic advantage:

These tactics have been and are integral to -- indeed, they are in preparation for -- the NFLPA's announced strategy to run out the clock and, after the CBA expires on March 3, purport to "disclaim interest" as the representative of the NFL players, a strategy utilized by the Union in a prior negotiation and one that the NFLPA often has threatened to resort to in this negotiation should it be deemed more advantageous to the players than the collective bargaining process that the Union is obligated by law to follow.  On the false premise that the bargaining relationship would effectively be terminated as a result of its sham dislaimer, the NFLPA has made plain that it will then seek (i) to enjoin, as a supposed antitrust violation, any effort by the League/Clubs in support of their bargaining demands to exercise their rights under federal labor law lawfully to lock out the players, and (ii) once again to achieve a favorable agreement with the NFLMC through the threat, commencement and subsequent settlement of antitrust litigation, rather than through the give and take of good faith collective bargaining contemplated by the Act and enforced by the National Labor Relations Board.

As evidence, the NFL suggests the Board view the NFLPA's statements and conduct over the course of the last 20 months. 

One of the interesting results of this filing is that, pursuant to the NLRB's "blocking charge" rule, the agency will likely not process a decertification petition filed by the players now, until after it has fully investigated this charge.  As a result, if the NFLPA intends to continue with its antitrust leverage strategy, the union itself will have to "disclaim interest" in representing the employees -- essentially, it must walk away from the players.  It is the union's ability to properly do this that the league is attacking in this charge.  According to Chapter 8 of the NLRB's Outline of Law and Procedure in Representation Cases:

To be effective, [a disclaimer] must be clear and unequivocal and made in good faith. Retail Associates, 120 NLRB 388, 391–392 (1958); Rochelle’s Restaurant, 152 NLRB 1401 (1965); and Gazette Printing Co., 175 NLRB 1103 (1969).  In International Paper, 325 NLRB 689 (1998), the Board characterized the request as being one of “sincere of abandonment with relative permanency.”

Thus, a union’s bare statement is not sufficient to establish that it has abandoned its claim to representation if the surrounding circumstances justify an inference to the contrary. 3 Beall Bros. 3, 110 NLRB 685, 687 (1955).  Its conduct, judged in its entirety, must not be inconsistent with its alleged disclaimer H. A.  Rider & Sons, 117 NLRB 517, 518 (1957).  McClintock Market, 244 NLRB 555 (1979), and Ogden Enterprises, 248 NLRB 290 (1980).  Windee’s Metal Industries, 309 NLRB 1074 (1992).

In assessing the effectiveness of any disclaimer by the NFLPA, the NLRB will indeed study carefully the union’s conduct over the last several months in bargaining, and perhaps more importantly, how it conducts itself after the supposed disclaimer.  Any effort by the union and its current leadership to continue to drive the players' negotiating strategy will surely undermine its position on these allegations.

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Our take on the American Medical Response, Inc. settlement, which continues to attract attention, should be no surprise to regular readers of this blog.  I spoke a bit last week to Business Insurance (subscription required) about some "take-aways":

"Though there was no decision in this case, I think employers need to recognize that the NLRB-issued complaint shows a change,” said Seth Borden, New York-based partner in McKenna Long & Aldridge L.L.P.'s labor practice. “Three or four years ago, it was very likely the board would not have filed this complaint, and it shows a marked change in direction in how it views social media,” he said.

Fellow labor attorneys Sara Begley and Eric B. Meyer provided helpful insights as well.

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Further proof that all things "Facebook" capture the public's attention nowadays, the Regional Director for Region 34 of the National Labor Relations Board appeared on a rock radio station's morning program today to discuss the Board's settlement of the American Medical Response case.  Monday night, Regional Director Jonathan Kreisberg approved the case settlement which included a traditional required Notice posting, commitments from the employer to revise its "Blogging and Internet Posting Policy," and an non-admission of liability clause. 

Appearing on Springfield, Mass. station WAQV Rock 102's "Bax and O'Brien" show earlier, the Regional Director discussed the case and provided this takeaway for employers:

It doesn't really set a precedent because it's not a final decision, it's not an order.  But the policy and practices under the Act are that if a case comes to us with a rule such as this, that under the existing law it would likely be found to be overly-broad and bad.  We can't go out and police -- we don't police companies.  That's not our job, it's not our authority.  We can only react when someone comes to us and files a charge, and then we investigate and make a decision. 

As we indicated Monday night, we expect additional cases in Region 34 and elsewhere to further define the parameters of what the Board considers and overly-broad Social Media policy.  Chairman Liebman has long indicated that she believes the Board must take a more prohibitive view of employer policies that might potentially be construed to impact protected activity.  Employers would be well advised to review their policies now for compliance with the law.  With all the publicity that this case garnered in the mainstream media, employers can count on the fact that somewhere, someone else is already doing so.

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On the eve of trial, the National Labor Relations Board tonight announced a settlement in American Medical Response of Connecticut, Inc., 34-CA-12576 -- a/k/a/ the "Facebook firing" case.  The hearing in the case was postponed once before and scheduled to begin tomorrow, but per the Board's press release, the parties have resolved the matter:

Under the terms of the settlement approved today by Hartford Regional Director Jonathan Kreisberg, the company agreed to revise its overly-broad rules to ensure that they do not improperly restrict employees from discussing their wages, hours and working conditions with co-workers and others while not at work, and that they would not discipline or discharge employees for engaging in such discussions.

The company also promised that employee requests for union representation will not be denied in the future and that employees will not be threatened with discipline for requesting union representation. The allegations involving the employee’s discharge were resolved through a separate, private agreement between the employee and the company.

The termination of the employee for undeniably vulgar commentary about her supervisor, on the one hand, and the alleged Weingarten violation in the denial of union representation, on the other,  were the "grey" facts that muddied the analysis of this case.  It would seem for now that we have been denied a concrete sense of the Board's developing approach to social media cases.

But we might not have to wait for long.  On February 4, the CSEA/SEIU filed an unfair labor practice charge against a Connecticut bus company at the Regional Office for Region 34.  Unlike the AMR case and other charges filed by CSEA/SEIU earlier, the charge in Case No. 34-CA-12906 contains no specific allegations that the company improperly disciplined any particular employee.  Rather, this charge alleges that the employer violated Section 8(a)(1) of the National Labor Relations Act merely by "maintaining" policies in its employee handbook, including a policy against:

The use of electronic communication and/or social media in a manner that might target, offend, disparage, or harm customers, passengers or employees; or in a manner that might violate any other company policy.

Region 34 and the General Counsel's treatment of what appear to be simpler facts in this case should provide a good deal more guidance about how the NLRB will evaluate social media policies in the future.

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On Friday, the National Labor Relations Board published a decision holding that an employer violated Section 8(a)(1) of the Act for terminating an employee before she engaged in protected "concerted activity."  In Paraxel Industries, LLC, 356 NLRB No. 82 (Jan. 28, 2011), the ALJ had concluded that there was no violation of the Act when the employer fired employee Theresa Neuschafer because she had not consulted with other employees about her workplace complaints, nor had any other employee encouraged her to speak up her issues.   The Board, however, reversed, holding that the employer's termination was a "pre-emptive strike to prevent her from engaging in activity protected by the Act.”

The Charging Party was an individual Licensed Practical Nurse (LPN).  She asked a co-worker, who had recently returned to work after having quit earlier, about her wages.  The co-worker lied, leading Neuschafer to believe that the co-worker and spouse who worked with them were paid a higher wage rate, in part because they were South African like certain key management personnel.  Neuschafer complained to her immediate supervisor about her wages, remarking that perhaps everyone should quit and come back with a raise.  Higher management later interviewed Neuschafer who reiterated her complaint, but indicated clearly that she had not discussed the issue with any co-workers.  She was subsequently terminated.

In concluding that her termination violated Section 8(a)(1) of the Act, the Board reasoned:

Neuschafer’s discharge had the obvious effect of restricting her own further protected discussions of wages and possible discrimination with other employees, thus interfering with her Section 7 rights. As discussed above, the discharge also had the effect of keeping other employees in the dark about these matters, thus preventing them from discussing, and possibly inquiring further or acting in response to, substandard wages or perceived wage discrimination. We therefore find that the Respondent’s discharge of Neuschafer violated Section 8(a)(1) of the Act.

The Board expressly declined to determine whether or not her behavior constituted "protected, concerted activity."  But in this holding, the Board has clearly and broadly expanded the range of conduct protected by the National Labor Relations Act.  Nearly any individual complaint by an employee might possibly, maybe, potentially one day provide the basis for concerted behavior if enough employees subsequently become aware of it so that perhaps one more employee discovers -- or subsequently decides -- he or she may share a similar concern.

To be sure, there were troubling facts alleged in this case with regard to activity protected by other federal employment statutes -- most notably, Title VII's anti-retaliation provisions.  But now an employer who terminates an employee who has in the past complained about a particular individual work issue may also face 8(a)(1) exposure -- notwithstanding the fact that the employee never took any concerted action regarding the issue.

Other resources and commentary:

• David Foley's creative case animation and commentary at his LaborRelated blog
• "Huge Expansion of 'Protected, Concerted Activity'?" -- Workplace Prof Blog
• Meyers Industries, 268 NLRB No. 73 (1984)  -- cited by Member Hayes in dissent: 

"I note that finding a Sec. 8(a)(1) motivational discharge violation in the absence of any actual concerted activity is unprecedented, and, at the very least, in tension with Meyers Industries, supra. I have serious reservations about this finding and the potential breadth of its application in future cases."

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The Acting General Counsel yesterday issued General Counsel Memorandum No. 11-05, narrowing the scope of Board deference to a contractual arbitration award in cases involving 8(a)(1) and (3) allegations. Last year, In Operations Memorandum 10-13(CH), prior General Counsel Ronald Meisburg identified tensions between the Board’s Spielberg/Olin deferral standards, D.C. Circuit Court of Appeals jurisprudence, and the recent Supreme Court case, 14 Penn Plaza, LLC v. Steven Pyett, 129 S. Ct. 1456 (2009). This earlier Memorandum invited a re-evaluation of the Board’s standards in light of these decisions.

Acting General Counsel Solomon’s Memorandum now announces a new approach:

Specifically, in Section 8(a)(1) and 8(a)(3) statutory rights cases, the Board should no longer defer to an arbitral resolution unless it is shown that the statutory rights have adequately been considered by the arbitrator. This includes not only cases involving Section 8(a)(1) and 8(a)(3) discipline and discharge, but also all other cases involving Section 8(a)(1) conduct that is subject to challenge under a contractual grievance provision.

The Memorandum urges the Board to impose the burden of proof for deferral upon the party urging deferral:

Thus, the party urging deferral must demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; and (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue. If the party urging deferral makes that showing, the Board should, as now, defer unless the award is clearly repugnant to the Act.

Finally, the Memo acknowledges that changes in Regional Office investigation procedures are necessary in light of these developments:

To prevent any such difficulties in future cases raising allegations of Section 8(a)(1) and 8(a)(3) that will be deferred under Collyer, particularly as a heightened standard would likely make at least some additional arbitral awards inappropriate for deferral, Regions should take affidavits from the Charging Party, and from all witnesses within the control of the Charging Party, before they make their “arguable merit” determination in considering Collyer deferral.

Only then, if the Region determines there is arguable merit to the charge and the other Collyer requirements are met, should the Region defer the charge. If the Region concludes the charge is without merit, of course, it should dismiss the charge, absent withdrawal.

In all pending and future cases where the Region has deferred a charge to arbitration under Collyer, when the arbitral award issues, the Region must review the award to determine whether post-arbitral deferral is appropriate. The Region should determine if the party urging deferral can demonstrate that: (1) the contract had the statutory right incorporated in it or the parties presented the statutory issue to the arbitrator; (2) the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issue; and (3) the arbitral award is not clearly repugnant to the Act. Upon making its determination, the Region should submit the case to the Division of Advice, along with the Region’s recommendation as to whether to defer.

As a result, even in cases where the underlying merits are subject to pending or past grievance and arbitration proceedings, the Board will thoroughly conduct its investigation of the merits before concluding whether deferral is appropriate. Following the award, the Board will review the award to ensure the standards have been met.  Employers must adjust their approach to negotiating discrimination, grievance and arbitration provisions in collective-bargaining agreements; how they approach and litigate discrimination and interference issues at arbitration; and, their expectations in connection with the processing of 8(a)(1) and (3) unfair labor practice charges filed during the life of a contract.

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In late 2010 and earlier this month, we observed that the NLRB was getting more aggressive in its enforcement of settlement agreements by including onerous "Default" or "Performance" language in some agreements.  This language generally required the employer to agree that in the event of alleged non-compliance with the settlement, all factual allegations in a re-issued Complaint would be deemed admitted.  

Now it's official. The Acting General Counsel has made this language mandatory. In General Counsel Memorandum No. 11-04 issued last week, Acting GC Lafe Solomon has directed Regional Offices to include the following language in all future settlement agreements:

The Charged Party/Respondent agrees that in case of non-compliance with any of the terms of this Settlement Agreement by the Charged Party/Respondent, and after 14 days notice from the Regional Director of the National Labor Relations Board of such non-compliance without remedy by the Charged Party/Respondent, the Regional Director will [issue/reissue] the [complaint/compliance specification] previously issued on [date] in the instant case(s). Thereafter, the General Counsel may file a motion for summary judgment with the Board on the allegations of the [complaint/compliance specification]. The Charged Party/Respondent understands and agrees that the allegations of the aforementioned [complaint/compliance specification] will be deemed admitted and its Answer to such [complaint/compliance specification] will be considered withdrawn. The only issue that may be raised before the Board is whether the Charged Party/Respondent defaulted on the terms of this Settlement Agreement. The Board may then, without necessity of trial or any other proceeding, find all allegations of the [complaint/compliance specification] to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party/Respondent, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the U.S. Court of Appeals Judgment may be entered enforcing the Board order ex parte.

One might expect that insistence on this language in a settlement agreement would make an employer far less willing to settle a case.  By requiring a waiver of the employer's rights to defend itself on the substance of the charges, this language puts an employer in a more precarious position after settling than it is in before.  It significantly raises the stakes in a compliance proceeding.

The Board would argue, however, that is the point -- that a charged party is more likely to abide strictly to the terms of the settlement agreement, and not risk being charged with non-compliance.  Of course, compliance disputes may be generated by anyone: the Board, individual employees, or a union.  This certainly provides an agitator or a union pursuing an aggressive organizing strategy with an additional potent weapon.

The Board asserts that its review of Regions historically using this language at their discretion have had higher rates of success both settling and litigating cases:

five Regions routinely propose[d], and three of those Regions regularly insist[ed] upon, inclusion of default language in all informal settlement agreements. With a settlement goal of 95%, these five Regions achieved settlement rates in FY 2009 of 96.9, 98.3, 95.6, 96.5 and 93 percent, respectively, and in FY 2010 of 100, 96.2, 94.2, 91.6 and 95.1 percent, respectively. These Regions also achieved litigation “win rates” in FY 2009 of 100, 75, 83.3, 90 and 93.3 percent, respectively, compared to a national rate in FY 2009 of 89.9 percent, and achieved litigation “win rates” in FY 2010 of 100, 100, 87.0, 87.5 and 100 percent, respectively, compared to the national rate in FY 2010 of 91.4 percent.

The Board thus continues its trend of strengthening remedies and enforcement options available to it to enforce the National Labor Relations Act.  We should not expect these developments to end anytime soon.

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The National Labor Relations Board was busy during the last week of 2010, issuing twelve published decisions and a number of additional unpublished decisions in representation cases.  Interesting decisions handed down last week include:

• Salon/Spa at Boro, Inc., 356 NLRB No. 69 (Dec. 30, 2010):  In this straightforward 8(a)(1) interrogation and discharge case, the Board approved the ALJ's Recommended Order directing electronic posting of the remedial notice via the employer's intranet system.  While the ALJ granted this remedy, sought by the General Counsel, prior to the Board's recent J. Picini Flooring decision, the Board (without Member Hayes' agreement) found it consistent with its current position and modified the Order accordingly.  The evidence found by the ALJ to justify this new remedial approach was that the employer maintained an internal "intercom" system, similar to e-mail, which it used to announce to its hair stylists things like staff meetings.  Expect electronic posting to continue to trend toward the presumed appropriate remedy.

• Sidhal Industries, LLP, 356 NLRB No. 67 (Dec. 30, 2010):  This decision involved another judgment granted pursuant to the more aggressive "performance" language being included by Regional Offices in connection with settlement agreements.  The agreement settling discrimination and refusal to bargain allegations in this case included a lengthy provision indicating that non-compliance with the settlement would result in re-issuance of the complaint, to be deemed admitted by the Board, leaving only the issue of compliance or non-compliance for dispute.  The Board here found non-compliance and, as a result, entered judgment on all the complaint's allegations. 

• New England Confectionary Co., 356 NLRB No. 68 (Dec. 30, 2010):  Chairman Liebman, and Members Becker and Pearce, found a number of 8(a)(1) violations in promises of better benefits made by supervisors to encourage a decertification effort.  The Board dismissed a number of allegations, however, that the employer's H.R. Generalist violated the Act by soliciting petition signatures and promising employees benefits.  The Board found that the H.R. Generalist lacked "apparent authority" to speak for management, as her role was largely administrative and not managerial in nature.

More information regarding these and the Board's other recent decisions is included in the Board's Weekly Summary of Cases.

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As 2010 draws to a close, the National Labor Relations Board shows no signs of slowing down.  On the heels of yesterday's announcement by the Acting General Counsel that Regional Offices should seek unique and broader remedies in organizing cases, the Board today has submitted to the Federal Register a Notice of Proposed Rulemaking.  The proposed rule would require all covered employers to notify employees of their rights to organize and bargain collectively by posting a notice in their workplace.

The Board's submission states that the Board:

believes that many employees protected by the NLRA are unaware of their rights under the statute. The intended effects of this action are to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and to promote statutory compliance by employers and unions.

Failure to post the notice would be considered an unfair labor practice by the Board -- presumably within the language of Section 8(a)(1) of the Act.  This proposed notice is similar to one finalized earlier this year by the U.S. Department of Labor for federal government contractors.  The proposed poster, set forth in the Appendix to the Notice of Proposed Rulemaking, states:

Under the NLRA, you have the right to:

• Organize a union to negotiate with your employer concerning your wages, hours, and other terms and conditions of employment.

• Form, join or assist a union.

• Bargain collectively through representatives of employees’ own choosing for a contract with your employer setting your wages, benefits, hours, and other working conditions.

• Discuss your terms and conditions of employment or union organizing with your co-workers or a union.

• Take action with one or more co-workers to improve your working conditions by, among other means, raising work-related complaints directly with your employer or with a government agency, and seeking help from a union.

• Strike and picket, depending on the purpose or means of the strike or the picketing.

• Choose not to do any of these activities, including joining or remaining a member of a union.

The proposed notice continues, listing several examples of unlawful behavior under the NLRA.  The Board's submission includes the dissenting view of Member Brian Hayes, which questions the Board's authority to impose such a requirement, and sanctions for non-compliance.  Public comments on the proposed rule may be filed with the Board's Executive Secretary within sixty (60) days of publication in the Federal Register, expected later today.  

Interestingly, the Board acknowledges that this rule was originally proposed in a petition to the NLRB by Charles Morris, Professor Emeritus of Law, Southern Methodist University, in 1993.   Professor Morris is known for a number of novel legal theories in support of expanding collective-bargaining rights under the NLRA.  Most recently, the arguments outlined in his book, "The Blue Eagle at Work" provided the foundation for a United Steelworkers effort before the Board in furtherance of minority union bargaining rights.   

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The Employee Free Choice Act appears completely dead -- not just "mostly dead," as it is unlikely to make the lame duck Congressional agenda as many feared.  Yet, the National Labor Relations Board continues its recent efforts to expand traditional Board remedies administratively without the passage of new legislation. 

Today, Acting General Counsel Lafe Solomon issued a Memorandum extending an initiative he announced on September 30, 2010 to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign.

The new Memorandum indicates that In these cases remedies should be crafted to: “recreate an atmosphere that allows employees to fully utilize their statutory right to exercise their free choice." For example, the memo suggests that regional offices include in complaints, and in 10(j) petitions, demands for unique remedies such as a reading of the Board’s remedial notice, or allowing union access to workplace bulletin boards and providing names and addresses of employees.

Coincidentally or not, the Board continues to phrase its announcements in language consistent with the suggestion that it is administratively pursuing at least some of the end results EFCA failed to accomplish legislatively.  The Acting GC's intro to this Memorandum begins:

The protection of employee free choice regarding unionization is a keystone of the Agency’s mission, and I am committed to making the principle of employee free choice meaningful. Accordingly, as Acting General Counsel I have placed a priority on ensuring that the Agency protects employee freedom of choice with regard to unionization by obtaining effective remedies for employers’ unlawful conduct during union organizing campaigns.

This is not likely to be the final effort along these lines. 

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The Employee Free Choice Act provision which garnered the least attention during the legislative push for the bill during the last several years was the section expanding remedies under the National Labor Relations Act.  After EFCA's future prospects appeared particularly dim, back in February 2010, we speculated in a Bloomberg Law Reports piece that the National Labor Relations Board would seek to expand traditional Board remedies administratively without the passage of new legislation.  That prediction is now increasingly coming to fruition.

In August, a District Court Judge granted a Board-sought preliminary injunction in a refusal to bargain case.  In October, the Acting GC announced a new initiative to increase significantly the Board's pursuit of preliminary injunctive relief in so-called "nip-in-bud" cases.  Later that month, the Board issued a decision awarding compound interest, changing the long-standing practice of ordering simple interest awards.  Finally, another October decision expanded the traditional Notice-posting remedy to include electronic posting under appropriate circumstances.

Now, a late November decision in Deja Vu Mechanicals, 356 NLRB No. 37 (Nov. 24, 2010), casts light on an increasing trend in connection with the settlement of Board cases.  The Employer settled a number of Unfair Labor Practice (ULP) allegations with the Board, which settlement included an obligation to pay five (5) make-whole payments to a particular employee.   The Employer failed to comply with that obligation, and the Board took further action. 

But the case did not go the typical "compliance" route because the Employer had agreed to a settlement agreement which included the following language:

The Charged Party agrees that in case of noncompliance with any of the terms of this Settlement Agreement by the Charged Party and after 14 days notice from the Regional Director of the National Labor Relations Board of such noncompliance without remedy by the Charged Party, the Regional Director may reissue the complaint dated February 25, 2010 in this case. The General Counsel may then file a motion for default judgment with the Board on the allegations of the complaint. The Charged Party understands and agrees that the allegations of the reissued complaint may be deemed to be true by the Board and its answer to such complaint shall be considered withdrawn. The Charged Party also waives the following: (a) filing of answer; (b) hearing; (c) administrative law judge’s decisions; (d) filing of exceptions and briefs; (e) oral argument before the Board; (f) the making of findings of fact and conclusions of law by the Board; and (g) all other proceedings to which a party may be entitled under the Act or the Board’s Rules and Regulations. On receipt of said motion for default judgment, the Board shall issue an order requiring the Charged Party to show cause why said motion of the General Counsel should not be granted. The Board may then, without necessity of trial or any other proceeding, find all allegations of the complaint to be true and make findings of fact and conclusions of law consistent with those allegations adverse to the Charged Party, on all issues raised by the pleadings. The Board may then issue an order providing a full remedy for the violations found as is customary to remedy such violations. The parties further agree that the Board’s order and U.S. Court of Appeals judgment may be entered thereon ex parte.

(Emphasis supplied).

In Deja Vu, the Board ordered the immediate payment of the additional financial amounts plus daily compounding interest.  We have been aware of discretionary efforts by Regional Offices to obtain tough "performance" or "compliance" language like this in the past -- particularly in cases involving recalcitrant employers.  But to the extent this fits neatly into a developing trend, employers should continue to watch efforts by the Board to expand and strengthen traditional Board remedies in all cases.

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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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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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In J.Picini Flooring, 356 NLRB No. 9 (Oct. 22, 2010), Members Becker and Pearce joined Chairman Liebman in holding that “respondents in Board cases should be required to distribute remedial notices electronically when that is a customary means of communicating with employees or members.”  The decision expands the customary Board remedy of posting paper notices in the workplace, and is a clear sign of this Board’s commitment to adapting NLRB mechanisms and law to evolving technologies in the workplace.

In a September 28, 2010 article in the National Law Journal, I suggested that Chairman Liebman was not content to allow the NLRB to be viewed as the “Rip Van Winkle of administrative agencies.”  Chairman Liebman wrote forcefully in the dissent to the 2007 Register-Guard case:

National labor policy must be responsive to the enormous technological changes that are taking place in our society.

The decision in J.Picini Flooring continues in that vein:

The ubiquity of paper notices and wall mounted bulletin boards, however, has gone the way of the telephone message pad and the interoffice envelope.  While these traditional means of communication remain in use, email, postings on internal and external websites, and other electronic communication tools are overtaking, if they have not already overtaken, bulletin boards as the primary means of communicating a uniform message to employees and union members.  Electronic communications are now the norm in many workplaces….

Accordingly, going forward, the Board will now require remedial notices to be distributed by email if an employer customarily uses email to communicate with its employees, and by other means of electronic communication which are so used by the employer. Questions as to whether some type of electronic communication is necessary will be addressed at the compliance stage.

Member Hayes filed a dissent to the decision, asserting that the Board has transformed “an extraordinary remedy into a routine remedy.” 

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NLRB Acting General Counsel Lafe Solomon has announced an initiative to increase the consideration and pursuit of Section 10(j) injunctive relief in so-called “nip-in-bud” cases, including employee terminations during a union organizing campaign. According to the announcement:

…in all cases found meritorious the General Counsel’s office will consider seeking a federal injunction that would compel an employer to offer reinstatement to the fired workers pending litigation of the underlying unfair labor practice case. In addition, new timelines and procedures have been created to speed up the process.

In a General Counsel Memorandum released along with his announcement, Mr. Solomon explains his motivation for this decision thus:

An important priority during my time as Acting General Counsel will be to ensure that effective remedies are achieved as quickly as possible when employees are unlawfully discharged or victims of other serious unfair labor practices because of union organizing at their workplaces. When an employer commits such unfair labor practices, it “nips in the bud” all of the employees’ efforts to engage in the core Section 7 right to self-organization.

Under Section 10(j) of the Act, the Board is authorized to seek preliminary injunctions from federal courts to protect victims of unfair labor practices pending litigation. The guidelines promulgated under this new initiative direct the Regional Offices to identify potential Section 10(j) organizing campaign discharge cases “as soon as possible after the filing of the charge” and establish coding instructions to facilitate the Board’s tracking of such cases. Pursuant to the “optimal timeline” set forth in the guidelines:

• Where possible, the lead affidavit should be taken within 7 calendar days from filing of charge in all nip-in-the-bud discharge cases.
• Regions should attempt to obtain all of the charging party’s evidence within 14 calendar days from the filing of the charge.
• If charging party’s evidence points to a prima facie case on the merits and suggests the need for injunctive relief, the Region should notify the charged party in writing that the Region is seriously considering the need for Section 10(j) relief and request that a position statement on that issue be submitted to the Regional Office within 7 calendar days after the written notification. This letter can be combined with the letter putting the charged party on notice of the allegations raised by the charge and should generally be sent within 21 days from the filing of the charge.
• A Regional Director will normally make a determination on the merits of the case within 49 calendar days from the filing of the charge. If the decision is to issue complaint, the decision with respect to the need for Section 10(j) relief should be made at the same time.

NLRB Chairman Wilma Liebman said in a statement that the Board has also revisited its procedures for requests to pursue injunctive relief: “The Board recognizes that 10(j) injunctions are a vital enforcement tool and time is of the essence in this kind of case.”

This is the latest in a series of developments expanding or seeking to expand the Board’s use of injunctive relief. Last month, we highlighted a preliminary injunction issued by a federal court in California requiring a bottler to recognize and bargain with the Teamsters pending resolution of unfair labor practice charges. In that blog post we also noted

Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases. Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

With Mr. Solomon’s announcement, it appears that the current Board will indeed be more aggressive in this regard in a wider variety of “nip-in-bud” cases.

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Today's National Law Journal carries a piece by yours truly regarding the potential labor law implications of the growth of social media use in the workplace.  Many astute observers have written on the intersection of social media with employment and privacy law.  Today's NLJ piece focuses on traditional labor law principles:

As the dramatic growth of social media continues to transform the manner in which we all interact with each other, prudent employers must consider traditional labor law principles when implementing workplace social media policies. The new National Labor Relations Board is paying attention to new media in all its forms, featuring its own Facebook page, YouTube channel, and Twitter feed. It is only a matter of time before this board directly addresses labor disputes arising out of the use of these media in the workplace.

You can read the entire piece here.

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On Friday, August 20, 2010, a District Court Judge for the Eastern District of California issued a preliminary injunction pursuant to Section 10(j) of the National Labor Relations Act. The order, in Garcia v. Sacramento Coca-Cola Bottling Co., 2:10-cv-2176 (Damrell, U.S.D.J.), requires the employer to recognize and bargain with Teamsters Local 150 pending the outcome of refusal to bargain charges filed at Region 20 of the NLRB.

The employer is a soft drink distribution franchisee. For over forty years, the production and maintenance employees were represented by an “in-house” union, the SCCBE. The employer and SCCBE were parties to a collective-bargaining agreement in effect from November 1, 2009 through October 31, 2013.   During early 2010, new officers of the union helped facilitate an affiliation with Local 150, which was apparently approved at a union meeting.

Subsequently, a significant number of employees protested the affiliation – including by signing a “disaffiliation petition” presented to the employer. The employer refused to recognize Local 150 and refused to hear grievances filed by Local 150. Accordingly, the union filed unfair labor practice charges alleging violations of Section 8(a)(1) & (5) of the Act. The Region issued a Complaint against the employer on or about June 20, 2010, and proceeded to file a petition in the District Court seeking injunctive relief under Section 10(j) of the Act.

To obtain interim injunctive relief under Section 10(j), the Board must demonstrate that it is likely to succeed on the merits, that irreparable harm is likely in the absence of preliminary relief, that the balance of equities tips in favor of such relief, and that an injunction is in the public interest. The Court’s decision to issue an injunction here applies this standard to the specific facts of the case before it – a mid-contract refusal to recognize a new union following an affiliation vote. But it restates a broad view of “irreparable harm” that future Courts might find equally applicable in “first contract” or organizing cases. Section 4 of the proposed but stalled Employee Free Choice Act (S. 560, H.R. 1409) would require Regional Offices to pursue injunctive relief in all organizing and “first contract” cases.   Likewise, without being prompted by legislative action, in 2006 and 2007, former General Counsel Ronald Meisburg issued memoranda to all Regional Offices urging them to consider pursuing 10(j) relief in more “first contract” cases. One might certainly expect that the current Board may be even more aggressive about doing so.

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