Employment Law Matters : Employment Lawyer & Attorney : Ogletree Deakins Law Firm : Labor Law, Human Resources

On January 25, 2013, a three-member panel of the D.C. Circuit Court of Appeals issued a decision in finding that the recess appointments to the National Labor Relations Board (NLRB or Board) by President Obama on January 4, 2012 were unconstitutional. Noel Canning v. NLRB, No. 12-1115, D.C. Circuit Court of Appeals (January 25, 2013). In an opinion on a case before it on appeal, the court held that the NLRB lacked a quorum of three members when it issued the decision on appeal, because the appointments did not occur during a "recess" of the Senate, as required by the U.S. Constitution. This ruling stands to have broad ramifications as it calls into question the validity of all of the decisions made by the Board dating back to January 4, 2012.

The case on appeal before the D.C. Circuit arose from an unfair labor practice charge brought against Noel Canning, a bottler and distributor in the state of Washington. An administrative law judge (ALJ) ruled that the company violated the National Labor Relations Act by refusing to reduce to writing and execute upon a collective bargaining agreement reached with the union. The ALJ then ordered Noel Canning to sign the agreement. The company appealed this decision to the NLRB. The Board affirmed the ALJ’s decision, and the company ultimately appealed the matter to the D.C. Circuit Court of Appeals.

On appeal, Noel Canning made certain substantive arguments related to the final agreement between the parties, but also challenged the authority of the Board to issue an order on two constitutional grounds. First, it claimed that the NLRB lacked a quorum under the applicable statute, because three members of the five-member Board were appointed when the Senate was not in recess. Second, it argued that the vacancies filled by these three members did not "happen during the Recess of the Senate" as required by the U.S. Constitution.

After finding that the Board’s decision was valid on statutory grounds, the D.C. Circuit turned to the constitutional arguments. Under Article II, Section 2, Clause 3 of the U.S. Constitution (also referred to as the Recess Appointments Clause), "[t]he President shall have power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions which shall expire at the end of their next session." Pursuant to this provision, President Obama on January 4, 2012 appointed three members to the NLRB. At the time of those appointments, the Senate was, in fact, conducting pro forma sessions every three days, by agreement, over a two week period.

Noel Canning contended that the President's appointments were invalid because they were not appointed during an actual "recess" of the Senate. Specifically, the company argued that the term “recess” refers to the intersession recess of the Senate (the period between sessions) when the Senate is not available to act upon nominations from the President. After carefully considering the plain text, history, and structure of the U.S. Constitution, the D.C. Circuit agreed with the company, stating that "To adopt the Board's proffered intrasession interpretation of 'the Recess,'" the court held, "would wholly defeat the purpose of the [f]ramers in the careful separation of powers structure reflected in the Appointments Clause [of the U.S. Constitution]." Thus, because the Board lacked a quorum of three members when it issued the ruling in the Noel Canning matter, the appellate court vacated the Board’s decision.

According to Harold P. Coxson, a principal with Ogletree Governmental Affairs, Inc. and shareholder in the firm’s Washington, DC office: "This is a seminal decision which is a 'game changer' for the NLRB and the parties subject to its jurisdiction. Under controlling U.S. Supreme Court precedent, this decision could mean that Board decisions issued since the invalid recess appointments were made - January 4, 2012 - lacked a quorum and will have to be recalled and re-decided by the Board. Coxson also adds that: "Although we can expect the Board to seek en banc review of the panel's decision by the full D.C. Circuit, and then perhaps by the U.S. Supreme Court, it is unclear what the Board and the Obama Administration will do in the interim. It may not affect the actions of the Board’s ‘Acting' General Counsel Lafe Solomon, himself appointed under the federal Vacancies Act, which has also been challenged – except, perhaps, where he seeks Board enforcement."

Additional Information

This important ruling and other issues relevant to the labor and employment law agenda will be addressed in detail during Ogletree Deakins' 2013 Legislative and Regulatory Program on February 21 and 22 at the Renaissance Washington, DC Downtown Hotel. To view the full seminar agenda, click here. To register for the program, contact Kim Beam at (800) 277-1410 or e-mail her at kim.beam@ogletreedeakins.com.
 

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Recent court decisions related to employees’ online postings have centered on whether disciplinary decisions regarding those postings may violate the National Labor Relations Act (NLRA). The NLRA protects certain employee “concerted activities” aimed at discussing or improving working conditions, and precludes interference with such communications, including online messages. However, individuals also have brought other legal causes of action against employers for so-called “Facebook firings.” Recently, a Texas appeals court was asked to determine whether the firing of an employee on the basis of her Facebook comment violated that employee’s state law privacy rights. The court held that it did not. Roberts v. CareFlite, Texas Court of Appeal 2d District, No. 02-12-00105-cv, Oct. 4, 2012.

Janis Roberts was a paramedic with CareFlite, a helicopter/ambulance service. Roberts posted on a fellow employee’s Facebook wall that she “wanted to slap” a patient who had needed restraints during a transport. When CareFlite compliance officer learned of the posting, she sent a message to Roberts – also through Facebook – reminding her that the public sees such postings, and asking her to “consider removing that post.” In response, Roberts curtly stated “Yeah, whatever,” and went on to state that sometimes “a patient needs an attitude adjustment.” Roberts ultimately removed the original posting, but before she did, the company’s CEO was made aware of it.

Roberts was terminated for her post, and for her “unprofessional and insubordinate” response to the compliance officer. She subsequently filed a lawsuit asserting that the company’s reaction use of and reaction to her personal and private Facebook message postings invaded her privacy under two state law claims: public disclosure of private facts, and intrusion upon seclusion.

After the lower court dismissed both of Roberts’ claims, she appealed the intrusion upon seclusion claim. However, in order to establish such a claim, Roberts would have to show an intentional intrusion on her privacy that was “highly offensive to a reasonable person.” Roberts argued that the rights of employees to privately discuss issues of patients who might affect employees’ safety outweighed issues of public concern (in this case, the public’s confidence in the ambulance company) and that, therefore, the employer’s intrusion into that discussion was a violation of privacy. In essence, Roberts attempted to assert the state-law equivalent of an NLRA Section 8 claim, which precludes companies from interfering in employees’ work-related safety discussions. However, because Roberts’ invasion of privacy claim was brought under state law tort theory, the court found that argument to be irrelevant, and dismissed the lawsuit for lack of legal support.

While this case was brought under Texas state law, the rationale is applicable to other circumstances, as well: courts will not read an “appropriate” cause of action into a lawsuit that fails to assert it. Whether or not Roberts’ allegations would have supported a cause of action for violation of the NLRA, her failure to specifically allege that claim, and her reliance on the state-law invasion of privacy claim, doomed her lawsuit. Obviously, employers should not become complaisant based upon this decision – employees’ rights to communicate about the terms and conditions of their employment remain protected under federal law.
 

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Last month, employers received a little more help from the National Labor Relations Board (NLRB) in formulating social media policies that pass muster under scrutiny from the Board. On October 19, 2012, the Associate General Counsel (AGC) for the NLRB's Division of Advice provided a useful and well organized opinion in response to a request from an NLRB Regional Director. The request was for advice as to whether an employer’s social media policy violated the National Labor Relations Act (NLRA), and whether an employee’s termination because of a violation of that policy violated the Act. In that memorandum, the AGC concluded that the employer’s policy was not overly broad and did not violate the NLRA. He further concluded that the employer did not unlawfully discharge an employee for an electronic posting that violated the policy. In re: Cox Communications, Inc. Case 17-CA-087612 (October 19, 2012)

The situation arose when an individual, employed by Cox Communications, Inc. as a technical support representative, posted a comment to his “Google+” account, in response to a customer’s negative and very personal comment to him during a troubleshooting phone call. The posting included the “F-word” directed to the customer. A supervisor saw the posting and reported it to management. The employee was suspended and an investigation was undertaken during which it was discovered that the employee had engaged in other, similar postings that also included lewd language which disparaged customers. The employee ultimately was fired for his Google+ postings. In response, he filed a Charge with the NLRB, alleging that the company’s social media posting violated his rights under the NLRA.

An employer violates Section 8(a) of the NLRA if its policy would “reasonably tend to chill employees in the exercise of their Section 7 rights.” Section 7 of the Act allows employees to engage in protected concerted activity, in order to allow them to discuss terms and conditions related to employment. The NLRB has developed a two-step process to determine whether a policy might violate Section 8. First, it determines whether the policy violates the Act by directly restricting Section 7 protected activities. Second, if the policy does not explicitly restrict those activities, the Board reviews it to determine whether it still may violate the Act if an employee could “reasonably construe” the language as prohibiting protected activity; if the policy was promulgated in response to union activity; or if the policy has been applied to restrict such activity. While the Board will not find a violation simply because a policy can conceivably be read to restrict protected activity, it can (and typically will) find a violation if a policy contains no limiting language or context that would clarify to employees that their Section 7 rights are not restricted.

The Cox Communications social media policy included acceptable limiting language and context. Its restrictions were spelled out in detail: “DO NOT make comments or otherwise communicate about customers, coworkers, supervisors, the Company, or Cox vendors or suppliers in a manner that is vulgar, obscene, threatening, intimidating, harassing, libelous, or discriminatory on the basis of age race, religion, sex, sexual orientation, gender identity or expressions, genetic information, disability, national origin, ethnicity, citizenship, marital status, or any other legally recognized protected basis under federal, state or local laws, regulations or ordinance.” In addition, the policy included a “savings clause” that stated specifically that nothing in the policy “is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment.”

In his analysis, the AGC pointed to the detailed policy provisions as providing context regarding the “reasonableness” of the policy. Whereas a rule simply proscribing “negative conversations” about manager, with no further clarifications or examples, would be unlawful because of a potential chilling effect on protected activity, Cox’s policy provided a lost list of “plainly egregious conduct,” and “clearly would not be reasonably understood to restrict Section 7 activity.”

The AGC also pointed out the policy’s “savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.” Based on the wording of the policy, the Board concluded that the termination of the technical support representative was lawful, because the Google+ post was not concerted activity for mutual aid and protection within the meaning of Section 7 of the NLRA. Concerted activity is defined to include “circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Clearly, the employee’s vulgar comments directed at a customer in anger, and not on behalf of coworkers or others, and could not be construed as concerted activity. Further, the company’s investigation of the matter before firing the individual evidenced a considered and thorough review of the situation.

Takes-aways from this matter are clear: (1) social media policies should include limiting language or other context that would clarify to employees that Section 7 rights are not restricted; (2) a “savings clause” that specifically states that the policy is not meant to prevent concerted communications can support a Board finding that the policy is lawful; and (3) a practice of prompt and thorough investigation of an employee’s posting, including objective and thorough documentation, prior to taking adverse action against the employee will help to support the appropriateness of the action.
 

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On September 28, 2012, a three-member panel of the National Labor Relations Board (NLRB) affirmed the decision of an Administrative Law Judge (ALJ) who upheld a car dealership’s firing of a salesperson that was based on a Facebook posting. But it also found a way to include its Notice of Employee Rights poster in the resolution of the case. Karl Knauz Motors, Inc. Case 13-CA-036452 (Sept. 28, 2012).

In May of 2011, NLRB issued a complaint (and accompanying press release) alleging unlawful termination of the car salesman for posting photos and comments on Facebook.  The complaint, which was similar to other complaints filed by the NLRB in the months prior to that case, alleged that a Chicago area BMW dealership illegally fired the employee after that individual posted information on his Facebook page that arguably was critical of the dealership.

In that case, the BMW dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. At the time, a Huffington Post reporter summarized the issue this way: “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it. The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

However, the employer/dealership stated that in reality, the salesman was fired because he also posted photos of an embarrassing (and potentially dangerous) accident involving a salesperson and vehicle from a neighboring car dealership, also owned by his employer. That situation involved a saleswoman who imprudently had allowed the 13 year old son of a customer to sit behind the wheel of a luxury SUV that had been purchased by the young person’s father. Apparently, the young man threw the car into gear and hit the gas, running over his father’s foot and jumping a wall, landing in a pond and damaging the vehicle.

The matter was heard by an Administrative Law Judge, who determined that the Facebook posting related to the snack issue was protected concerted activity that discussed “terms and conditions” of employment. Under the NLRA, employee communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity. However, the ALJ went further and determined that the employee actually was fired for his second posting, in which he mocked a dangerous situation and embarrassed others – and neither activity is protected by the NLRA. Therefore, the ALJ upheld the firing. That decision now has been affirmed by the NLRB.

In this era of increased focus on employer limitations on electronic communications, however, the dealership hasn’t gotten away unscathed. Two of the three members of the NLRB panel that heard the case found that the employer’s “Courtesy” policy -- which stated that “Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.” – violated the NLRA because the rule might “chill” employees’ protected statements related to working conditions, or in seeking the support of others to improve those conditions.

As a penalty for that violation, the Board has required the dealership to rescind the offending policies and to notify employees of that rescission. The notification is to be done by posting a specific form provided by the NLRB and entitled “Notice to Employees.” That notice specifically informs employees of their right to “form, join, or assist a union.” Worth noting is the fact that this mandated Notice contains wording similar to the “Employee Rights Notice” set forth in a proposed NLRB rule that has been the subject of legal challenges since December of 2010. While those legal challenges have kept the rule from being implemented, the NLRB has taken every opportunity to include the posting as part of any penalty imposed on employers who are found to have violated the NLRA by restricting protected communications among employees. To avoid that scenario, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

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Recently, the National Labor Relations Board (NLRB) has issued a number of decisions restricting the ways in which employers can limit employee electronic communications, even when those communications may damage the company or another employee’s reputation.  For many employers, those decisions have caused serious consternation, as companies now focus on what can and cannot be included in handbooks and policies.  Many companies feel as if they are being faced with a decision between risking a violation of the National Labor Relations Act (NLRA) and protecting proprietary information, including confidential personnel information.   

Earlier this month, the NLRB found that a retail company’s handbook policies, which prohibited certain employee postings and communications, violated Section 8 of the NLRA.  Costco Wholesale Corp., 358 N.L.R.B. No. 106, September 7, 2012.  Section 8 states that it is an “unfair labor practice” for an employer to “interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7 [of the NLRA].”  Section 7 provides to all employees - unionized and non-unionized - the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”

In that case, an employer (Costco) maintained a nationwide handbook for its non-union employees that set out the terms and conditions of employment for those individuals.  The handbook included rules that prohibited: “unauthorized posting, distribution, removal or alteration” of material; discussion of “private matters” of other employees, including sick days, leaves of absence, and personal health information; sharing of “sensitive information” such as employee personal health information, social security numbers, and financial information; and sharing “confidential” information such as employees’ names, phone numbers, addresses, and e-mail addresses.  It also included a specific policy prohibiting electronic postings that “damage the Company, defame any individual or damage any person’s reputation.” 

During the course of an organizing drive to unionize a Costco facility in Milford, Connecticut, unfair labor practice charges were filed in which it was alleged that the Company was maintaining policies that violated the NLRA.  An Administrative Law Judge held a hearing and determined that the policies limiting the sharing of information violated the NLRA, but that the policy prohibiting electronic postings that might damage the Company or defame individuals did not.  Upon review by a three-member panel, the NLRB agreed with the ALJ and adopted his findings that the policies against sharing information violated the NLRA.  However, the panel disagreed with the ALJ regarding the rule prohibiting statements that damage the Company or any person’s reputation, finding - without elaboration - that “employees would reasonably construe this rule as one that prohibits Section 7 activity.”  Therefore, according to the NLRB, an employer’s general prohibition of statements that could damage or defame the company or others could be viewed by the NLRB as violations of employees’ right to “concerted activity.” 

In its opinion, however, the NLRB made statements that could provide to employers a “safe harbor” which may protect a company from allegations that a policy has prohibited employees’ concerted activities.  First, the panel pointed out that Costco’s “broad” prohibition against making statements that damage the Company or any person’s reputation “clearly” encompasses concerted communications, but pointedly adds that “there is nothing in [Costco’s] rule that even arguably suggests that protected communications are excluded from the broad parameters of the rule.” The panel goes on to add that Costco’s rule “does not present accompanying language that would tend to restrict its application.”   Those two statements, taken together, flag the fact that, had the rule included language specifically exempting concerted protected activities, such as communications that were critical of Costco’s treatment of employees, or had it prohibited only egregious conduct, such as sabotage or sexual harassment, the NLRB may have found the policy narrowly drawn and not in violation of Section 8. 

It is clear from this decision that the NLRB will not condone company policies that broadly prohibit either the “unauthorized posting, distribution, or alteration” of information or materials, or the sharing or storing of information related to the terms of employment (including wage information), even if that information is viewed as confidential by an employer.  Taken in conjunction with previous NLRB decisions and opinions, this case makes it imperative that handbooks and policies are narrowly drafted to address specific prohibited behavior, and that the language of the policies include the business justification for such prohibitions, in order to avoid unanticipated liability for violation of the NLRA.

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Section 8(a)(1) of the National Labor Relations Act (NLRA) makes it illegal for an employer to interfere with or restrain employees from exercising the rights accorded to them under that Act. In NLRB v. J. Weingarten, 420 U.S. 251 (1975), the U.S. Supreme Court held that the NLRA “guarantees an employee’s right to the presence of a union representative at an investigatory interview in which the risk of discipline reasonably inheres.” The protections that resulted from that holding typically are referred to as “Weingarten rights.” On July 25, 2012, the National Labor Relations Board (NLRB) upheld an Administrative Law Judge’s decision that an employer violated an employee’s Weingarten rights when managers ignored the employee’s request to have a union representative present when a meeting -- originally scheduled to impose a verbal warning for prior actions -- became a discussion of the employee’s general behavior and interaction with his supervisor. That issue was one of many addressed by the NLRB in an appeal in which the remaining issues were dismissed or found not to have been a violation of the NLRA. General Die Casters, Inc., 358 N.L.R.B. No. 84 (7/25/12).

Jerome Ivery, an employee of General Die Casters (GDC), is a member of the International Brotherhood of Teamsters Local 24, and was one of the union’s earliest supporters. On October 28, 2010, the union filed a charge against GDC, which it then amended on a number of occasions to include various actions by GDC which, it alleged, were in violation of the NLRA. One of the amendments referred to a meeting between Ivery and two senior managers that took place on November 1, 2010.

At that meeting, Ivery was presented with a disciplinary notice related to a number of misstatements on his timecards, for which he was receiving a verbal warning. According to the NLRB’s Acting General Counsel, after that discipline was discussed, the managers began an “investigatory interview” of other issues related to Ivery’s relationship with his supervisor. Ivery was asked a number of questions about recent complaints to his supervisor (“. . . why are you always questioning what you’re doing at that given time as if we are doing it to single you out?”). At that point, Ivery asked whether he needed “to get somebody else in here,” and was told that it would not be necessary. As the discussion continued, GDC’s plant manager made a number of references to Ivery’s disciplinary “trouble in the past,” prompting Ivery to again ask whether he needed “somebody” to attend the meeting. That second request was simply disregarded, and the session ended without further discipline being imposed against Ivery.

In its review of the ALJ’s decision, the NLRB first addressed the issue of whether Ivery’s question regarding whether he “needed to get somebody else n here” was sufficient to act as a request for union representation, and determined that it was. It then addressed whether Ivery had the requisite “reasonable belief” that the discussion could lead to discipline.

In past cases, the NLRB has found a right to Weingarten representation based on a reasonable belief of possible discipline when an employer has interviewed an employee with a history of work performance issues and conflicts with supervisors. In this case, the NLRB decided that because Ivery had “some history of work performance issues” and had previous conflicts with his supervisor, a denial of union representation violated Section 8 of the NLRA.

In its detailed opinion, the NLRB provided two clues to employers who would prefer to avoid liability on this issue. First, the Board specifically pointed out that the managers “never indicated to Ivery that no discipline was being considered.” This lack led directly to the Board’s determination that the meeting was, in fact, investigatory in nature, and that Ivery’s fear of impending additional discipline was reasonable. Second, in its review of a case offered by GDC to support the company’s position, the NLRB pointed out that the proffered case could be differentiated because in that situation, “no questions were asked of anyone,” and that, therefore, the meeting in that case could not have been perceived as investigatory. While these two issues, by themselves, may not create a successful defense by an employer against an NLRB charge, they are tips that may assist in avoiding liability under circumstances in which a disciplinary meeting branches out to include discussion of other performance-related issues.

Another point of interest is that the penalty for the violation found in this matter is a requirement to post, for 60 consecutive days, a notice that includes language informing employees of their unionization rights and of an employer’s obligations under the NLRA. The required Notice, written by the NLRB and attached to the opinion in this matter, follows the form and function of a rule that was proposed by the NLRB in 2010, and which would have required most U.S private-sector employers -- including most of the 6 million small business in the U.S. -- to post a written notice of employee rights regarding unionization. The regulation was proposed in 2010 and was set to become effective in November of 2011. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. At that point, the DC Circuit Court of Appeals enjoined the NLRB’s rule requiring the notice posting, which cannot take effect until the legal issues are resolved. There is no new deadline for the posting requirement at this time. However, based on the NLRB’s decision in this matter, GDC must post that notice. Employers should recognize that the rationale in this decision is a legitimate vehicle for the NLRB to impose a requirement that, at this point, has not been universally imposed upon employers through legislation.
 

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Discipline imposed pursuant to a company policy that restricts employees from any discussions of their wage rates may implicate Section 7 of the National Labor Relations Act (NLRA). Section 7 protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. On June 7, 2012, the National Labor Relations Board (NLRB) issued an opinion in which it affirmed an Administrative Law Judge’s decision that an employer violated the NLRA when it fired an employee for disclosing wage rates in violation of a company rule. Taylor Made Transportation Services, Inc, Case No.05-CA-036646 (June 7, 2012).

Section 7 of the NLRA specifically encompasses the right of employees to ascertain what wages are paid by the employer; in fact, wage discussion often are considered to be at the core of Section 7. Kimberly Tutt was suspended and then fired for disclosing her wage rate to her fellow employees. Tutt and her co-workers worked for Taylor Made Transportation Services, Inc., which provided passenger transportation services to the U.S. Government under a contract with the Social Security Administration. Taylor Made had a handbook policy that required employees to maintain confidentiality of certain company information, specifically including “Compensation data.” Further, the handbook stated that “All employee pay rates are confidential and should not be disclosed verbally, written or electronically posted for deliberate expose [sic] of rates without a valid reason.”

During her brief (six week) employment with Taylor Made, Tutt was spoken to on multiple occasions regarding her lack of professional behavior, both with passengers and co-workers. In addition, Tutt was informed by the company’s human resources director that it had been brought to the company’s attention that employees were upset because Tutt had disclosed her rate of pay, which was higher than some of her co-workers. Tutt was then informed that she was being suspended for five days, and that management would decide whether to continue her employment. At the conclusion of her suspension, Tutt was discharged. Tutt testified that she was told by human resources that her termination was due to discussing with and disclosing confidential pay rates to fellow employees. Although Taylor Made stated to the NLRB, in response to Tutt’s NLRB complaint, that the firing was based on “inappropriate cell phone usage” and “lack of professional behavior,” the company’s human resource director previously had reported to a unemployment compensation claims examiner that the reason for termination was Tutt’s “failure to follow policy in disclosing her wages.”

The Administrative Law Judge found that Taylor Made had violated the NLRA by promulgating a policy that explicitly prohibits employees from discussing compensation, because such a rule is “unlawful on its face.” That determination subsequently was upheld by a three-member panel of the NLRB, which agreed that the company had imposed discipline against Tutt pursuant to an “unlawfully overbroad rule” and therefore, had violated the NLRA.

While the ALJ’s analysis and opinion is worth reading, the issue of which employers should be aware is the range of penalties imposed against Taylor Made for its violation of the NLRA. Those penalties included reinstatement of Tutt to her former position; payment of lost earnings and benefits to Tutt; removal of information related to the discipline and termination against Tutt from her personnel file; rescission of the handbook policies and provisions that precluded employees from discussing pay rates; and the posting of a Notice, drafted by the NLRB, for 60 consecutive days “in conspicuous places” throughout Taylor Made’s facility.

The Notice, which is attached to the NLRB’s opinion, includes information regarding the NLRA, and begins by informing employees, in capital letters, that: “FEDERAL LAW GIVES YOU THE RIGHT TO: Form, join, or assist a union . . . ,” going on to list the rights of employees under the NLRA, and to enumerate the things that Taylor Made was prohibited from doing under that Act. The Notice also includes details about Tutt’s circumstances, her reinstatement, and the payment of her back wages and benefits.

Company handbooks and policies cannot preclude employees from discussing the terms and conditions of their employment, unless such discussions actually interfere with the employee’s own work or otherwise actually interfere with the operation of the business, and that act of interference – and not the violation of the rule – was the actual reason for termination. In this case, the employer did not assert that affirmative defense, and ultimately was found to have violated the provisions of the NLRA, making itself subject to the penalties available to be imposed under that Act.
 

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Section 7 of the National Labor Relations Act (NLRA) protects the right of employees to engage in “concerted activities” with each other for the purpose of collective bargaining or in efforts to improve working conditions and terms of employment. These concerted activities can be done in person, or by other methods of communication, including electronic media. Employers who terminate an employee based upon a social media posting that ultimately is determined to have been “protected concerted activity” may be violating Section 7 of the NLRA. An employer’s discipline or termination of an employee, if found to violate the NLRA, can lead to legal liability that may result in financial damages and reinstatement of the employee. That fact has created interest, consternation, and varying levels of panic among employers who are trying to balance the rights of employees to protected concerted activity with a company’s right to expect compliance with its policies and with attempts to protect confidential information.

In August 2011 and January 2012, the Acting General Counsel of the National Labor Relations Board (NLRB) issued reports that both dealt with cases arising in the context of employee communications via social media. Those reports provided to employers a glimpse into the NLRB’s rationale for dealing with cases in which employees claim that an employer’s disciplinary action based on a social media posting violated Section 7 of the NLRA. But those reports did little to stem employers’ concerns related to the delicate balance between employees’ rights to open communication with each other, and implementation and enforcement of company policies related to communications via social media.

On May 30, 2012, the NLRB issued its third report. This one was dedicated primarily to social media policies. The report summarized seven different policies, pointing out provisions in the first six which may be in violation of Section 7 of the NLRA, but holding up the seventh policy – newly revised by a national retail chain -- as “lawful.”

Some of the examples of “unlawful” language in the first six policies may cause some concern among employers. For instance, one company’s policy stating that employees who were in doubt as to whether a posting might violate the policy should “check with [Employer] Communications or [Employer] Legal to see if it’s a good idea . . . .” was deemed a violation of law because a “rule that requires employees to secure permission from an employer as a precondition to engaging in Section 7 activities” automatically violates the NLRA. A company’s policy that required employees to assure that “posts are completely accurate and not misleading and that they do not reveal non-public company information on any public site” was deemed to be unlawfully overbroad and, according to the NLRB, could “reasonably be interpreted to apply to discussions about, or criticism of the Employer’s labor policies and its treatment of employees that would be protected by the [NLRA]. . . .” Of real concern is the NLRB’s evaluation of this company policy: “Offensive, demeaning abusive or inappropriate remarks are as out of place online as they are offline.” According to the Board, that statement is in violation of Section 7 because it “proscribes a broad spectrum of communications that would include protected criticisms of the Employer’s labor policies or treatment of employees.”

Employers should disabuse themselves of the notion that a “savings clause” (for example, “This policy will be administered in compliance with applicable laws and regulation, including Section 7 of the NLRA.”) will satisfy the NLRB from finding its policy to be unlawful. Such a provision, according to the May 30 report, “does not cure the ambiguities in [a] policy’s overbroad rules.”

What can an employer do to meet the standards set forth by the NLRB in this latest report? Luckily, the Board provided a roadmap in the form of an “acceptable” policy. According to the Board, the key to that policy’s lawfulness is that the policy “provides sufficient examples of prohibited conduct so that, in context, employees would not reasonably read the rule to prohibit Section 7 activity.” While a number of the policy’s provisions are as broad as those found by the NLRB to be in violation of Section 7 in other policies, the concrete examples of what does and does not violate the policy seems to have satisfied the concerns that the Board expressed regarding the six earlier examples.

While some employers may assume that the easiest way to assure full compliance with Section 7 is simply to use the exemplar policy in its totality, those employers should understand that company policies typically are not one-size-fits-all. A more practical solution would be to review the exemplar policy carefully, and then tailor its core concepts to fit the values and existing needs of the specific employer. It also is important to continue to pay attention to the development of case law in this area, to assure an understanding of how the courts will interpret this latest NLRB report.
 

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Unless reversed or stayed before the end of the month, an April 13, 2012 ruling by a federal district court in South Carolina will block the implementation of a National Labor Relations Board (NLRB) rule that would require most U.S private-sector employers -- including most of the 6 million small business in the U.S. -- to post a written notice of employee rights regarding unionization. Chamber of Commerce v. NLRB, D.S.C., No. 11-cv-2516, 4/13/12. The regulation was proposed in 2010 and was published as a final rule in August 2011, set to become effective in November of that year. The effective date was postponed to January 31, 2012, and then further postponed until April 30, 2012. Now, the posting deadline is up in the air again.

A judge for the U.S. District Court for the District of South Carolina held that the National Labor Relations Act (NLRA) does not provide or support authority to the NLRB to promulgate such a rule. Although the judge specifically stated that he “does not discredit” the NLRB's assertion that employees need additional information about their NLRA rights, he granted summary judgment to the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce, noting that “the NLRA does not require employers to post general notices of employee rights under the Act,” and that the NLRA primarily “places the Board in a reactive role” in dealing with labor complaints made by employees. According to the court, there is nothing in the NLRA that allows the Board to enlarge the authority specifically granted in the Act, and that promulgating the proposed rule would do just that. The judge’s footnote to Simon & Garfunkel lyrics -- “And no one dared / disturb the sound of silence.” Simon & Garfunkel, The Sound of Silence (Columbia Records 1966) -- was an effective illustration of the court’s point that “there is not a single trace of statutory text that indicates that Congress intended for the [NLRB] to proactively regulate employers in this manner.”

Earlier this year, in a case involving a similar challenge to the rule filed by the National Association of Manufacturers and other groups, the U.S. District Court for the District of Columbia conversely held that the NLRB did not exceed its statutory authority by requiring employers to post the required "Notification of Employee Rights under the National Labor Relations Act." In that case, the court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” National Assn. of Manufacturers v. NLRB, No. 11-1629 (ABJ), .D.D.C., 3/2/2012 (see detailed summary and a link to the opinion in the March 4, 2012 posting at www.employmentlawmatters.net). While that decision has been appealed, there had been no decision as of this date from the D.C. Circuit Court of Appeals on a request to stay the implementation of the rule.

In the more recent decision, the South Carolina court concluded that promulgation of the rule is unlawful, and granted summary judgment in favor of the plaintiffs/business groups, and against the NLRB and its members. That decision will effectively suspend the April 30 deadline, unless action is taken in the coming weeks to overturn the decision or stay its effects. Apparently, this “Dangling Conversation” will have to wait for an appellate court action to create some kind of “Bridge Over Troubled Water”. . . .
 

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On March 2, 2012, a federal trial judge in the D.C. Circuit Court of Appeals issued a highly-anticipated ruling on the National Labor Relations Board's (NLRB) controversial notice posting rule. National Association of Manufacturers v. NLRB, No. 11-1629 (ABJ), U.S. District Court for the District of Columbia (March 2, 2012).

As most employers now are aware, private-sector employers whose workplaces fall under the jurisdiction of the National Labor Relations Act (NLRA) jurisdiction soon will be required to post a notice of employee rights regarding unionization, pursuant to the NLRB’s final rule related to the Notification of Employee Rights under the NLRA. That final rule, which becomes effective on April 30, 2012, requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011. However, that deadline was extended a number of times, most recently to allow a federal judge in the D.C. Circuit Court of Appeals to make a determination on legal challenges to that final rule.

Those legal challenges came about when, after the NLRB issued the proposed final rule on August 30, 2011, the National Association of Manufacturers (NAM) and National Right to Work Legal Defense and Education Foundation (NRTW) brought separate actions – later consolidated - against the NLRB, its members, and its General Counsel, seeking to invalidate the Rule. In addition to claiming a violation of First Amendment rights, the actions alleged that the NLRB lacked the authority: (1) to promulgate and enforce the notice posting rule; (2) to require employers to post a notice absent the filing of an unfair labor charge or union petition; (3) to deem the failure to post to be an unfair labor practice; and (4) to toll the statute of limitations for filing an unfair labor practice charge.

In the March 2 holding, the D.C. Circuit Court judge held that the NLRB did not exceed its statutory authority by requiring employers to post its "Notification of Employee Rights under the National Labor Relations Act." The court concluded that the Board has the authority under the NLRA to promulgate a rule that requires all employers to post a notice of employee rights, because there is nothing in the NLRA that indicates that “Congress unambiguously intended to preclude the Board from promulgating [such] a rule. . . .” The court further also declined to find that the NLRB’s promulgation of the notice posting provision was “arbitrary and capricious,” which could have invalidated the rule. In addressing the NLRB’s authority to penalize employers that failed to post the notice, the court held that "the Board cannot make a blanket advance determination that a failure to post will always constitute an unfair labor practice." However, the court went on to say that the Board could make this determination on a case-by-case basis. Therefore, while the Board exceeded its authority under the NLRA when it promulgated a rule that failure to post the required notice would automatically be a violation of the NLRA, a determination of whether a particular failure to post would constitute such ULP still can be determined by courts on a case-by-case basis.

The court came to a similar conclusion with regard to Section 104.214(a) of the Rule, which extends the statute of limitations for unfair labor practice proceedings arising out of the failure to post, and which applies to all unfair labor practice actions against employers where the notice was not posted. The court found that the NLRA does not authorize the Board to enact a rule that permits it to automatically toll the statute of limitations in any future unfair labor practice action involving a job site where the notice was not posted. However, also the court opened a door in this instance for the NLRB to find that tolling is appropriate on a case-by-case basis where the notice is not posted.

Therefore, based on the March 2 court decision, employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions - depending on the facts of the specific circumstance - for an unfair labor practice under the NLRA and, an extended statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. Importantly, if an employer knowingly and willfully fails to post the notice, that failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

It should be noted that another challenge to the Rule, which was filed by the U.S. and South Carolina Chambers of Commerce, is still pending in U.S. District Court in Charleston, and has yet to be decided.
 

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As most employers now are aware, on August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under that rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights regarding unionization. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable.

The proposed rule has been pending since December of 2010, and was to have taken effect on November 14, 2011, at which time employers would have been required to post written notices consistent with the rule. However, in October 2011, the NLRB announced its decision to postpone the implementation date for the notice until January 31, 2012. Since that time, the legal challenges to the rule having continued. The federal judge hearing arguments on the matter in Washington, D.C. last month told the board attorneys that either the effective date would have to be further extended, or she would enjoin the NLRB from implementing it, as she needed more time to consider the briefs and oral arguments presented by both sides in the case.

On December 23, 2011, the NLRB agreed to postpone the effective date of the notice-posting to April 30, 2012. The Board stated 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. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in a parallel action challenging the rule. In October 2011, Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office stated that the Board’s initial postponement of implementation would “permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline (April 30) may be subject to sanctions for an unfair labor practice under the NLRA and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may extend the time within which employees may file ULP charges against that employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule, and a link to the preamble that summarizes the provisions of the final rule. Employers should also know that along with the obligation to post the rule will come the right to post a notice to employees of their right to choose not to unionize – however, wording of such a notice should be discussed and cleared with legal counsel prior to posting it.
 

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On August 25, 2011, the National Labor Relations Board (NLRB) announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA). Under the rule, private-sector employers whose workplaces fall under NLRA jurisdiction will be required to post a notice of employee rights under that Act. The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. The proposed rule has been pending since December of last year, and was to have taken effect on November 14, 2011, at which time the required notices were to have been posted. The Board received over 7,000 comments – from employers, employees, and even unions - during the comment period.  Most of those objected to all or parts of the new rule.

Earlier this week, the National Labor Relations Board (NLRB) issued a press release announcing its decision to postpone the implementation date for the notice until January 31, 2012, ostensibly to allow for enhanced education and outreach to employers. However, it also will provide time for the Board to review and analyze actions challenging the notice, and to assess challenges to the Board’s authority to create or enforce a rule requiring such notice. This firm is actively involved in the issues, and is representing the U.S. Chamber of Commerce and the South Carolina Chamber of Commerce in an action challenging the rule. According to Cheryl Stanton, a shareholder in Ogletree Deakins’ Morristown, New Jersey office: “We are gratified that the NLRB has heeded the parties’ request that the Board postpone implementation of the new posting requirement to permit a measured and thorough judicial review of whether the Board exceeded its authority in this rulemaking process.”

Employers who fail to post the notice after the new deadline may be subject to sanctions for an unfair labor practice under the NLRA, and, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice (ULP) allegations against the employer. This means that an employer’s failure to post the required notice may allow employees additional time within which to file ULP charges against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA, meaning that the failure to post could inadvertently provide adverse evidence in an unrelated ULP matter.

Proposed notice language can be found on the NLRB’s website, along with FAQs and a copy of the required poster.
 

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On August 25, 2011, the National Labor Relations Board (NLRB) issued a press release in which it announced its final rule related to the Notification of Employee Rights under the National Labor Relations Act (NLRA).  Private-sector employers (including labor organizations) whose workplaces fall under the jurisdiction of the NLRA will be required to post a notice of employee rights under that Act. In addition, employers who customarily post notices to employees regarding personnel rules or policies on an internet or intranet site will be required to post the Board’s notice at those sites. The proposed rule has been pending since December of last year, and will take effect on November 14, 2011, at which time the required notices must be posted.

The final rule requires employers to post and maintain the NLRB notice in conspicuous places, and to take “reasonable steps” to ensure that the notices are not altered, defaced, or covered by any other material, or otherwise rendered unreadable. Copies of acceptable notice will be available from the NLRB’s regional offices, but also be downloaded from the NLRB website. Under the final rule, employers have the right to post their own notice as well. While the final rule addresses the issue of whether employers may post their own notices informing employees of the company's position, the fact that proposed Notice language has been suggested by the NLRB is a likely hint that employer-drafted notices should include some or all of the proposed language.

The final rule also specifically addresses the issue of multi-national workforces in the US, and provides that where 20% or more of a workforce “is not proficient in English and speaks a language other than English,” the employer must provide notice in the language that such employees speak. The rule goes further to require that if an employer's workforce “includes two or more groups constituting at least 20 percent of the workforce who speak different languages, the employer must provide the notice in each such language." The NLRB has offered to provide translations of the notice.

The final rule lists a number of exemptions from the notice posting requirement including, for example, state or political subdivisions. In addition, the final rule states that federal contractors may comply with the provisions of the NLRB's posting requirement by posting the notices to employees already required under the DOL’s notice posting rule, and will not have to post a second notice.

Sanctions will be imposed against employers who fail to comply with the posting requirements after November 14, 2011. Primarily, an employer’s failure to post the notice may be treated as an unfair labor practice under the NLRA. However, the rule also states that the unfair labor practice case typically will be closed without further action if an employer was unaware of the rule and complies when requested. However, in any event in which notice has not been posted, the Board may extend the six-month statute of limitations for filing a charge involving other unfair labor practice allegations against the employer. Further, if an employer knowingly and willfully fails to post the notice, the failure also may be considered evidence of unlawful motive in any unfair labor practice case involving other alleged violations of the NLRA.

Proposed notice language can be found on the NLRB’s website, along with an information sheet that summarizes the provisions of the 194 page rule.
 

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Recently, the National Labor Relations Board (NLRB) has increased its focus on social media communications, and especially on those postings that include discussion regarding the terms and conditions of employment. The issues most commonly raised in cases before the NLRB have alleged that: (1) an employer has overbroad policies that restrict employees’ use of social media; or (2) that an employer unlawfully discharged or disciplined one or more employees over contents of social media postings. Based upon the Board’s increased focus on these issues, employers are reviewing and revising existing social media policies in an attempt to fully understand how this area of the law is evolving.

While there has been a rash of cases in which employers have been criticized for restrictions related to employees’ social media use, three recent memoranda to NLRB regional offices from the Board’s Office of the General Counsel (OGC) indicate that the Board is not imposing a blanket prohibition on discipline related to social media postings by employees.

On July 7, 2011, the OGC responded to a query as to whether an employer unlawfully discharged an employee/bartender for posting a Facebook message that referenced the employer’s tipping policy (that waitresses do not share tips with bartenders), which was posted in response to a non-employee/relative’s question regarding how his night at work went. JT’s Porch Saloon & Eatery Ltd., NLRB Div. of Advice, No. 13-CA-46689, 7/7/11. The employee’s response complained that he hadn’t had a raise in five years, and that he was doing waitresses work without tips. He also called his customers “rednecks” and stated that he hoped they “choke on glass” as they drive home drunk. The postings were not discussed with other employees, either before or after the posting. The OGC opined that there was no evidence of the “concerted activity” protected by Section 8(a)(1) of the National Labor Relations Act (NLRA) and that, therefore, the firing of that individual because of his postings did not violate the NLRA.

Less than two weeks later, on July 19, 2011, the OGC responded to a request for advice regarding whether an employer unlawfully discharged an employee for inappropriate Facebook postings that referenced the employer’s mentally disabled clients. Martin House, NLRB Div. of Advice, No. 34-CA-12950, 7/19/11. In that instance, an employee of a non-profit residential facility for homeless people with significant mental health issues engaged in a Facebook “conversation” with a non-employee/friend in which she referenced a client’s “voices” and told her friend it was “spooky” to work in a “mental institution” at night. One of the employer’s former clients saw the postings and called to report her concern, and the employee was fired. The employer based its action on the premise that it is not “recovery oriented” to use the clients’ illnesses for personal amusement. The OGC pointed out that the employee was not seeking to induce to prepare for group action related to her job conditions. Instead, the postings were communications with non-employees/friends about what was happening on her shift. The OCG found that the employee was not fired in violation of the NLRA.

Also on July 19, 2011, the OGC responded to question as to whether a retail employer violated Section 8(a)(1) by disciplining an employee for posting profane comments, critical of local management, on his personal Facebook page.  In that circumstance, a customer service employee in Oklahoma posted comments to his Facebook page after interacting with a new Assistant Manager. The comments were read and responded to by co-workers. However, the responses consisted largely of “hang in there” type remarks, and did not reference terms and conditions of the work environment. The OGC determined that the company’s discharge of the individual was not a violation of the NLRA, because the postings were made “solely by and on behalf of the employee himself” and did not look seek to initiate or induce group action. According to the OGC “mere griping” is not protected activity.

These recent advisory letters indicate that the NLRB’s review of social media cases is developing further, but there still are no clear-cut directives on which employers can rely for advice. However, some newly developed resources are available. Earlier this year, the U.S. Chamber of Commerce submitted a Freedom of Information Act (FOIA) request to the NLRB, seeking “copies of all charges, complaints, and completed settlements related to social media.” In response, the Chamber received information going back to 2009 which included 117 charges, 7 complaints, and 5 settlement agreements, and compiled that information into a survey that is available for review. According to the Chamber, the purpose of this survey is to “summarize the publicly available information obtained through our FOIA request and other available sources regarding the NLRB’s caseload related to social media in an effort to help reveal the many areas where social media and labor law intersect—areas that will confront the Board, employers, and other stakeholders in the coming months and years.” Compiled by Michael J. Eastman, Executive Director, Labor Law Policy, U.S. Chamber of Commerce, this compilation is a “must-read” resource for employers. See Michael’s comments on the Chamber’s blog.
 

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The National Labor Relations Board (NLRB) has issued another complaint (and accompanying press release) alleging unlawful termination of an employee for posting photos and comments on Facebook.  The complaint, which is similar to other complaints filed by the NLRB in the past months, alleges that a Chicago area BMW dealership illegally fired an employee after that individual posted information critical of the dealership. In case you’ve missed the ever-escalating activity on this issue, here’s a summary:

• Earlier this year, in a highly publicized matter, the National Labor Relations Board (NLRB) pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

• In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. As part of the settlement of that matter, the company agreed to negotiate a new social media policy that would more effectively protect employees’ rights to communicate regarding work conditions.

• On May 9, 2011, the NLRB issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the NLRA when it fired five employees after they used Facebook to criticize working conditions. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

In this most recent case, a car dealership’s salesperson was unhappy with the quality of food and beverages at a dealership event promoting a new BMW model.  A Huffington Post reporter summarizes the issue this way: “[The salesman] and a few co-workers apparently felt that Sam's Club hot dogs and bottled water were no way to hype a luxury car -- and they thought their sales might suffer because of it.  The salesman's critical commentary [on his own Facebook page] included photographic evidence of the unremarkable snacks.”  Other employees had access to that Facebook page. When the dealership’s management asked the salesman to remove the posts, he immediately complied. Nevertheless, shortly after a subsequent meeting with his managers, the employee was terminated.

According to the NLRB, the employee’s Facebook posting was protected concerted activity within the meaning of Section 7 of the National Labor Relations Act (NLRA), because it related to a discussion among employees about the terms and conditions of their employment. Under the NLRA, employees’ communications about work-related issues are entitled to protection, and employers are prohibited from stifling that activity.

The dealership, through its attorney, has stated that the salesman was fired for reasons other than the protected communication.  Unless this matter is settled, the case will be heard by an administrative law judge on July 21, 2011, in the Chicago Regional office of the NLRB.

Clearly, the NLRB has increased its focus on social media communications, and is taking the position that employer policies cannot impose limitations on electronic communications to the extent that those postings include discussion regarding the terms and conditions of employment. Based upon that increased focus, employers should take the opportunity to review their social media policies, and to train managers and supervisors to coordinate with their human resources departments any planned disciplinary actions based upon the use of electronic communications, especially if those communications involve personal postings.
 

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On May 9, 2011, the National Labor Relations Board (NLRB) issued a complaint alleging that Hispanics United, a Buffalo non-profit that provides social services to low-income clients, violated the National Labor Relations Act (NLRA) when it fired five employees after they used Facebook to criticize working conditions. This complaint comes on the heels of two other highly publicized situations in which the NLRB asserted that companies violated employees’ rights by limiting the information that could be posted on social media sites.

Earlier this year, employers watched with interest as the NLRB pursued an employer in Connecticut after that company fired an individual for posting a negative comment about her supervisor on her own Facebook page, using her home computer to do so. The NLRB argued that the employer maintained and enforced overly restrictive policies regarding blogging and Internet postings outside of work, and that such enforcement by the company could be viewed as a violation of the National Labor Relations Act, which precludes restriction of employees’ “concerted activity.” That case ultimately was settled, and no administrative or judicial determination was made on the issue. However, the employer has since revised its policy to be less restrictive.

In April of this year, a settlement between the Newspaper Guild and a publishing company avoided a threatened complaint by the NLRB that would have included an accusation that the company inappropriately reprimanded a reporter for a message posted on Twitter. After posting a message that said “One way to make this the best place to work is to deal honestly with Guild members,” the reporter was contacted by phone by her manager and was told that her post was a violation of the company’s social media policy. The NLRB said that it would file a complaint against the company, because the call to the reporter could “chill” her ability to discuss working conditions; it also claimed that the company’s social media policy was overly restrictive. As part of the settlement of that matter, the company agreed to negotiate a new social media policy, one that would include language that would protect employees’ rights to engage in concerted activity about working conditions, as provided under federal law.

The NLRB’s complaint against Hispanics United, filed May 9, 2011, stems from a situation in which an employee posted - to her own Facebook page - information in support of a co-worker who had claimed that the organization did not do enough to help its clients. That post generated responses and additional comments from other employees who criticized their working conditions and defended their own performances. After hearing about the postings, Hispanics United fired five individuals who participated in the online discussion. The basis of the firings was that the online comments constituted “harassment” of the employee mentioned in the originally posting. However, the NLRB is asserting that the Facebook postings involved discussion among employees about their own working conditions, and therefore was protected activity. A hearing on the matter is scheduled in Buffalo, NY, for June 22, 2011.

The interesting difference between the earlier situations and this most recent complaint is the fact that Hispanics United is a non-union company. Employers must recognize that the National Labor Relations Act, which prohibits the restriction of “concerted activity” among employees, protects both union and non-union workers. Further, the NLRB has made it clear that it can file a complaint based upon a company’s written internet policy even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

This case is another instance that reminds employers to take care to draft employment policies - not only social media policies - that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to work toward positive changes in the terms and conditions of the workplace.
 

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Last month, employers’ attention was focused on the settlement of a matter in which the NLRB originally had announced plans to prosecute a complaint brought by its Connecticut regional office regarding the termination of a union member/employee who had posted negative remarks about her supervisor and her employer on her personal Facebook page. The employee had been fired specifically for posting the derogatory comments. After investigating that firing, the regional office determined that the postings were “concerted activity” which was protected by federal law, and that the employee’s discharge was a violation of Section 7 of the National Labor Relations Act. It also determined that the company’s internet policy was overly restrictive to the extent that it precluded employees from making any disparaging remarks when discussing the company or its supervisors. Both issues were settled, with the company agreeing to a revision of its internet policies to ensure that they did not restrict employees’ rights to communicate freely about working conditions, and an agreement from the company not to fire individuals for engaging in such activity.

Within weeks of that settlement, the NLRB issued another opinion – this time involving an employee who posted derogatory comments about his employer after his termination. Stephens Media, LLC d/b/a Hawaii Tribune-Herald and Hawaii Newspaper Guild Local 39117, Communications Workers of America, AFL-CIO, 356 NLRB No 63, confirming order issued February 14, 2011. In that case, an Administrative Law Judge issued a decision finding that an employer had violated the NLRA by taking certain actions, including “disparately and discriminatorily enforcing its security access policy against the Union; discriminatorily prohibiting employees from wearing buttons and armbands in support of discharged or suspended employees; and promulgating and maintaining a rule prohibiting employees from making secret audio recordings of conversations in response to protected activity.” The same ALJ also ruled that the company violated the Act by suspending and discharging certain employees.

The issue of interest here is the fact that after the ALJ ordered the company to reinstate the discharged individuals, the company argued that one of the individuals should not be returned to work because of negative blog postings that he had made after his employment termination. To support that argument, the company cited the Supreme Court’s long-standing 1953 decision referred to as the Jefferson Standard case. However, in that case, the question was whether an employer could lawfully terminate employees for statements made during the individuals’ employment, when those statements disparaged the company’s products. There, the Supreme Court held that the terminations were legal because employees owed a “duty of loyalty” to the employer, and that the disparaging remarks concerned “the very interests which the attackers were being paid to conserve and develop.” The Jefferson Standard case also has been cited for the premise that if an employer becomes aware of such pre-discharge conduct after an unlawful discharge/order to reinstate, back pay may be cut-off and reinstatement denied to the employee on the ground that such conduct, if known, would have supported the employee’s firing.

The NLRB distinguished the Jefferson Standard case from the present situation. Here, the derogatory remarks occurred post-discharge, after it already had been determined that the discharge was unlawful. The focal issue for the NLRB was whether the employee’s post-discharge remarks could form the basis of a denial of reinstatement or could cut-off a claim for back pay. The NLRB says that they cannot, stating that, “[s]imply put, employees who are unlawfully fired . . . often say unkind things about their former employers [after the fact].” According to the NLRB, employers who violate the law should not be permitted to escape a full remedy for the effects of their unlawful actions based on the fired employees’ “natural human reactions” to those actions.

This case differs from the Connecticut case, where the individual was fired for the derogatory Facebook posts, which ultimately were considered to be protected concerted activity. In the Hawaii Tribune-Herald case, the employer was found to have unlawfully terminated an employee, who then engaged in the derogatory blogging, which the company then attempted to use to block reinstatement of employment. While the two cases are different, the moral-of-the-story for employers is similar: do not assume that because the tenor, the substance, or the timing of internet communications is objectionable to the company, those communications can form the basis of adverse employment decisions regarding employees or former employees.
 

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In November 2010, the National Labor Relations Board (NLRB) announced its plans to prosecute a complaint issued by a Connecticut regional office regarding the termination of a union member/employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleged that the employer, an ambulance service, maintained and enforced overly broad and restrictive policies regarding blogging and Internet postings outside of work.

The incident on which the NLRB’s complaint was based began when an employee posted a negative comment about her supervisor on her own Facebook page, using her own home computer to do so. The comment elicited supportive responses from co-workers, and led to further negative comments from the employee herself. When the company learned of the comments, it fired the employee, stating that the postings violated the company’s internet policies. The NLRB investigated the situation, ultimately determining that the Facebook postings were “concerted activity,” protected by federal law. Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms and conditions of their workplace and employment, and the NLRB argued that restricting an employee’s personal use of Facebook and the Internet to communicate with co-workers outside of work was a violation of Section 7.

On February 7, 2011, the NLRB announced that a settlement between the employer and the NLRB had been approved. The terms of that resolution include a revision of the company’s policies to ensure that they do not improperly restrict the rights of employees to discuss wages, hours, and other working conditions. The company also has agreed that it will not discipline or fire employees for engaging in such activity in the future. It should be noted that the company’s position throughout this matter has been that the individual who authored the Facebook postings was fired “based on multiple, serious complaints about her behavior,” and not simply because of the postings. The settlement of this matter includes a separate, private settlement between the company and the individual employee, the terms of which have not been made public.

Both union and non-union employers should recognize that the NLRB’s allegation regarding the company’s internet policy is one that could be brought against any employer on the basis of a written policy, even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is discussing the personal character of a particular supervisor.

While this case was resolved without a public hearing and, it is presumed, to the mutual satisfaction of the parties, employers who implement restrictive policies related to employee interaction and communication risk the high-profile, expensive, and disruptive circumstance in which this company found itself. Therefore, companies should take care to draft employment policies that do not impinge upon employees’ rights to act in concert and do not keep employees from acting to effect positive change in the terms and conditions of the workplace.
 

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Although supervisors generally are not covered by the National Labor Relations Act (NLRA), which protects “employees” from unfair labor practices, that Act is deemed to have been violated if a supervisor’s discharge results from his refusal to commit an unfair labor practice. Recently, the 6th U.S. Circuit Court of Appeals upheld the dismissal of a supervisor’s federal court complaint on the basis of lack of jurisdiction, holding that because the individual claimed to have been fired for refusing to take action against pro-union employees, the issue could only be properly reviewed by the National Labor Relations Board (NLRB). Lewis v. Whirlpool Corporation, 6th Cir., No. 09-4231, Jan. 12, 2011.
Timothy Lewis worked for Whirlpool for 30 years, from 1977 until 2007, in its non-union facility in Marion, Ohio. In 2004, certain Whirlpool employees began to wear pro-union shirts, and to meet with union representatives. Lewis - a supervisory employee at the time - alleges that he was instructed by a company vice president to “build a case” and to terminate two of the pro-union employees. He refused to do so.
In March 2007, Lewis was accused of “badging” an employee. (Badging refers to a procedure during which a supervisor clocks-in an employee using the time badge of a different employee.) After an investigation, Lewis was fired. He then filed a charge with the NLRB, alleging that he was fired because of his refusal to “commit unfair labor practices” in 2004. In November 2007, Lewis received a letter from an NLRB field examiner, stating that his charge against Whirlpool was “without merit,” and informing Lewis that the regional Director was prepared to dismiss the charge for that lack of merit. The letter gave to Lewis the option of withdrawing the charge voluntarily, which Lewis did.
In March, 2009, Lewis filed a lawsuit against Whirlpool for wrongful discharge claiming that he was fired “in violation of public policy” after he refused to terminate the pro-union employees in 2004. Whirlpool filed a motion to dismiss the complaint on the basis that the claim was preempted by the NLRA. The district court agreed, and granted the motion to dismiss.
Lewis appealed, arguing that as a supervisor, he was not subject to the NLRA and, therefore, that he could not have gone forward with his claim in that venue. However, the Sixth Circuit pointed out the available exception, in which a supervisor may bring a claim under the NLRA when he is disciplined and/or terminated for refusing to commit unfair labor practices. In response, Lewis attempted to portray the November 2007 letter from the NLRB as a statement that the Board did not have jurisdiction over him, based on his supervisory role. However, because that letter actually addressed the substance of Lewis’ claim, finding it to be without merit, and letting him know that it would be dismissed unless withdrawn, the Sixth Circuit refused to allow Lewis to support his claim with that letter.
While the employer/company was the successful party in this matter, the lesson for employers is really between the lines here: while the prevailing view is that supervisors are not entitled to the rights offered to “employees” under the NLRA, this case points out the statutory exception. Although supervisors are not explicitly covered by the NLRA, the actions of a supervisor who is refusing to commit an unfair labor practice are clearly protected. Employers cannot take any action that would interfere with, restrain or coerce a protected employee in the exercise of his or her rights under the NLRA. Taking such action through a supervisor actually compounds the violation by creating a legal cause of action in favor of the supervisor.
 

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The National Labor Relations Act (NLRA) is one of the few federal employment/labor laws which does not include a specific provision requiring employers to post a notice related to employee rights under that law. That may be about to change. On December 21, 2010, the National Labor Relations Board (NLRB) issued a Notice of Proposed Rulemaking, pursuant to which all employers covered by the NLRA would be required to post educational notices which would inform employees of their rights to act collectively, to discuss the terms and conditions of their employment with each other or with a union, and to form a union for purposes of collective bargaining. Under the proposed wording of the Notice to be posted, it will be illegal for an employer to question employees about union-related activities, to stop them from soliciting for union formation during non-work time, and to prohibit them from wearing union insignias on clothing (except in certain special circumstances).

Underscoring the fact that the NLRB is serious about its enforcement of the proposed notice-posting requirement, the Board has announced that an unfair labor practice charge could be filed against an employer that fails to comply with the proposed rule, once it become effective. Also, if an employer fails to post the required notice of employee rights, the Board may find that the 6-month period for filing any unfair labor practice charges by employees of that employer does not begin to run until the Notice is posted or until the employee filing the charge “otherwise acquires actual or constructive notice that the conduct in question may be unlawful,” thereby extending the applicable statute of limitations.

It is of note that the proposed rule provides that an employer’s failure to comply with the notice-posting requirements may have an effect on that company’s defense of other unfair labor practice charges, because the Board may consider “knowing noncompliance with the posting requirement” in determining whether unlawful motive has been established in situations where such an “unlawful motive” is an element of the violation.

If the proposed rule comes into effect, employers with significant numbers of employees who lack proficiency in English will be obligated to post the notice in the language spoken by those workers. Further, employers that customarily communicate with employees via electronic mail will be required to distribute the notice by e-mail or by posting it prominently on the company’s website or intranet.

In short, this proposed rule may make up for the perceived ground that was lost in the legislative fight over the Employee Free Choice Act, which is now viewed as all-but-dead; and while most employees are unfamiliar with their rights under the NLRA, this proposed notice-posting rule will certainly broaden the resources available to employees to educate them about those rights.

Public comment has been invited on the rule and its proposed enforcement provisions. Such comments will be accepted until February 22, 2011, and should be submitted electronically to www.regulations.gov, or can be mailed to Lester A. Heltzer, Executive Secretary, NLRB, 1099 14th St., N.W., Washington, D.C. 20570. The final rule, which is likely to be issued in the spring, will take effect by summer, 2011, unless slowed by litigation or action in opposition by Congress.
 

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The National Labor Relations Board has issued an order accepting as “the law of the case” a 2009 decision by the 2d U.S. Circuit Court of Appeals in which, drawing a distinction between picketing and striking, that Court held that a New York health clinic unlawfully fired five employees for joining a picket line, even though the picketing itself was an unfair labor practice by the union. Correctional Medical Services, Inc, 356 N.L.R.B. No. 48, December 9, 2010.

Correctional Medical Services (“CMS”) operated a health clinic at a state correctional facility in Albany, NY. In September 2002, five off-duty employees of CMS joined a peaceful union picket line of about 20 individuals that was protesting CMS’ refusal to recognize AFSCME Local 1000 (“the union”) as bargaining agent for all of the clinical workers of CMS. The picketing was peaceful, and lasted for less than an hour, without blocking access to the clinic. CMS issued letters to the five off-duty employees, informing them that the union’s conduct was “illegal” and, therefore, that the five employees would be informed of their employment status after an investigation.

Section 8(g) of the National Labor Relations Act (NLRA) includes a provision that requires a labor organization to provide at least 10 days advance notice before engaging in “any strike, picketing, or other concerted refusal to work” at a healthcare entity. In this case, no such notice was given, and the five CMS employees ultimately were terminated from their employment. CMS also filed a charge against the union under Section 8(g). The union settled the Section 8(g) charge, but filed its own charge, alleging that the termination of the five off-duty employees violated the National Labor Relations Act (“NLRA”).

In 2007, the NLRB said that the employees had acted in violation of the NLRA, and that the termination were appropriate. The union filed a petition, asking the Second Circuit to review the NLRB order, and that petition was granted. On appeal, the Second Circuit ruled that the NLRB improperly construed Section 8 of the NLRA related to healthcare workers.

Under Section 8(a) of the NLRA, an employer commits an unfair labor practice if it interferes with an employee’s right to organize. Picketing is generally considered to be a protected activity under the Act. However, in the 1974 amendments to the NLRA, Congress modified Section 8 of the Act, adding a restriction - Section 8(g), mentioned above - related to picketing or striking against a healthcare entity, and requiring a 10-day notice of such activity by “labor organizations.” That particular sub-section does not state that an individual employee who participates in such activity commits a violation. Under modified Section 8(d), however, an employee who engages in “any strike” at the healthcare entity without the required notice is no longer an “employee” under the NLRA, losing all protection under the Act. This was the language cited by CMS to support its discharge of the five picketers.

However, the Second Circuit pointed out that while Section 8(d) provides that an employee who engages in a strike without proper notice “shall lose his status as an employee of the employer engaged in the particular labor dispute,” Section 8(d) does not include a comparable provision about employees who participate in peaceful picketing conducted by the union in violation of those notice requirements. Therefore, while a “labor organization” is subject to sanctions for either striking or picketing without observing the appropriate notice under Section 8, the Act specifically sanctions only those individuals who participate in a strike against a healthcare entity, and not in picketing of that same employer (unless those individuals are actually “agents” of the union under a separate Section of the NLRA). The Second Circuit then vacated the NLRB’s decision, and remanded the case back to the NLRB for review.

On remand, the Board accepted the Second Circuit’s 2009 decision, and found that CMS violated the NLRA by interfering with the employees’ rights to act collectively. It further found that CMS violated the NLRA by threatening the employees with disciplinary action before the investigation that led to their discharge, and by interrogating the employees about the picketing. Under the Act, CMS’s questioning of the employees was viewed by the Board as “coercive.” Importantly, the test for coercion under the applicable section of the NLRA “does not turn on the employer’s motive.” In other words, an employer’s good-faith belief that its actions are not coercive is not a defense.

This importance of this case to healthcare entities is obvious, in light of current efforts toward unionization of healthcare employees. While the Board’s decision does not bring up this fact, the Second Circuit specifically pointed out in its 2009 opinion that this circumstance involved only “peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic,” but states that it could “conceive of certain circumstances where protected picketing could cause disruption in the ability of a health care facility to deliver health care.” Interestingly, this language is not referenced in the Board’s recent opinion and, therefore, it may be safe to assume that the Board may not be as flexible as the Court in holding differently if the picketing at issue is more disruptive than in this instance.
 

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Section 7 of the National Labor Relations Act (NLRA) restricts employers’ attempts to interfere with employees’ efforts to work together to improve the terms and conditions of their workplace and employment. The National Labor Relations Board (NLRB) regularly has held that an employer’s actions violate Section 7 if those actions would “reasonably tend to chill employees” in the exercise of their rights under the NLRA.

Recently, the NLRB announced its plans to prosecute a complaint issued by its Hartford Connecticut regional office regarding the termination of an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint alleges that the company, American Medical Response of Connecticut, Inc., an ambulance service, also denied union representation to the employee during the investigation of the incident.

The incident began when the employee was asked to prepare a report related to a customer’s complaint about the employee’s work. When the employee asked for union representation regarding the complaint, the company denied that representation. Later that day, after leaving work, the employee posted a negative comment about her supervisor on her own Facebook page, using her own home computer to do so. The comment elicited supportive responses from co-workers, and led to further negative comments from the employee herself. When the company learned of the comments, it fired the employee, stating that the postings violated the company’s internet policies.

The NLRB investigated the situation, and determined that the Facebook postings constituted “protected concerted activity” and that the employer’s internet policy was overly restrictive to the extent that it precluded employees from making disparaging remarks when discussing the company or its supervisors. A complaint was filed, alleging both that the company’s actions violated Section 7, and that its internet policy was overly restrictive.

Both union and non-union employers should pay attention to further developments in this situation, particularly because the NLRB’s allegation regarding the company’s internet policy is one that could be brought against any employer on the basis of a written policy, and even in the absence of a specific factual instance of violation of such policy. Under the NLRA, employees have the right to engage in protected concerted activity, which can include discussions, meetings, or even a single employee who is attempting to initiate group action. While employees do not have unlimited discretion in choosing their method of activity - they cannot, for example, be “unduly and disproportionately disruptive” - employment policies should be drafted to avoid precluding employees’ ability to act in concert, or to act to effect positive change in the terms and conditions of the workplace. According to the NLRB, such activity might even include an online discussion about the personal character of a particular supervisor.

Employees and employers alike will be watching for a decision after the January 25, 2011 hearing on this matter.
 

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Drawing a distinction between picketing and striking, the 2d U.S. Circuit Court of Appeals has held that a New York health clinic unlawfully fired five employees for joining a picket line, even though the picketing itself was an unfair labor practice by the union. Civil Serv. Employees Assn. Local 1000 v. NLRB, 2d Circ., No. 07-5041, June 19, 2009.

The American Federation of State, County and Municipal Employees (AFSCME) represents correctional officers at a state facility in Albany where Correctional Medical Services (CMS) operated a health clinic. Local 1000 of that union attempted to organize the employees of the clinic, asking CMS to recognize the union as a bargaining agent for all of the clinic’s employees other than physicians, supervisors, and clerical workers. When CMS refused that request, the union established a picket line in which 20 individuals peacefully picketed in front of the clinic’s main entrance for less than an hour, without blocking access to the facility. Those 20 individual include five off-duty, non-union CMS employees.

Section 8(g) of the National Labor Relations Act (NLRA) includes a provision that requires a labor organization to provide at least 10 days advance notice before engaging in “any strike, picketing, or other concerted refusal to work” at a healthcare entity. In this case, no such notice was given, and the five CMS employees received a letter on the following day informing them that the picketing had occurred without the required 10-day notice and, therefore, was illegal. Shortly after receiving those letters, the five employees were fired, based upon CMS’ reading of the NLRA.

CMS filed a charge against the union under Section 8(g); acting on that charge, the NLRB director issued a Section 8(g) complaint against the union. Local 1000 settled the complaint against it, but filed a charge against CMS, alleging that the employees’ firings were illegal. In May 2007, the NLRB ruled that the clinic’s discharge of employees did not violate the NLRA. Local 1000 petitioned for review of that decision. On appeal, the Second Circuit ruled that the NLRB improperly construed Section 8 of the NLRA related to healthcare workers.

Under Section 8(a) of the NLRA, an employer commits an unfair labor practice if it interferes with an employee’s right to organize. Picketing is generally considered to be a protected activity under the Act. However, in the 1974 amendments to the NLRA, Congress modified Section 8 of the Act, adding a restriction - Section 8(g), mentioned above - related to picketing or striking against a healthcare entity, and requiring a 10-day notice of such activity by “labor organizations.” That particular sub-section does not state that an individual employee who participates in such activity commits a violation. Under modified Section 8(d), however, an employee who engages in “any strike” at the healthcare entity without the required notice is no longer an “employee” under the NLRA, losing all protection under the Act. This is the language cited by CMS to support its discharge of the five picketers.

However, the Second Circuit pointed out that while Section 8(d) provides that an employee who engages in a strike without proper notice “shall lose his status as an employee of the employer engaged in the particular labor dispute,” Section 8(d) does not include a comparable provision about employees who participate in picketing conducted by the union in violation of those notice requirements. Therefore, while a “labor organization” is subject to sanctions for either striking or picketing without observing the appropriate notice under Section 8, the Act specifically sanctions only those individuals who participate in a strike against a healthcare entity, and not in picketing of that same employer (unless those individuals are actually “agents” of the union under a separate Section of the NLRA).

This case is one of which healthcare entities must be aware, especially in light of current efforts toward unionization of healthcare employees. However, we may not have seen the last of this issue. The Second Circuit points out in its opinion that this circumstance involved only “peaceful picketing by off-duty employees that caused no disruption to the operation of the clinic,” but states that it could “conceive of certain circumstances where protected picketing could cause disruption in the ability of a health care facility to deliver health care.” While the Court states that its opinion in this case is based upon the clear wording of the statute, it suggests that “[i]f the balance is imperfect, the Board should petition Congress to fix it.”
 

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The 9th U.S. Circuit Court of appeals has held a Washington state medical center in violation of federal labor law for withdrawing recognition of a union during a protected certification period. Virginia Mason Medical Center v. NLRB, 9th Circ., No. 07-73851, Feb. 25, 2009.

Once a labor union is certified as the exclusive bargaining representative of a unit of employees, that union is entitled to a non-rebuttable presumption of majority status for a reasonable amount of time (the “certification period”), which typically is one year. Throughout the certification period, the employer must recognize the union and must bargain with it in good faith, whether or not the employer believes that the union has lost its majority status with the unit’s members during that time.

In 2000, the United Staff Nurses Union Local 141 (Union) won certification as the representative of unit employees at one of 20 medical clinics run by Virginia Mason Medical Center (VMMC) in the Puget Sound area. VMMC tested that certification by initially refusing to bargain with the Union. The NLRB ordered VMMC to bargain and stated that, to ensure that the employees were allowed the “services of their selected bargaining agent for the period provided by law,” the certification period would be deemed to begin on the date that VMMC “begins to bargain in good faith with the Union.”

VMMC’s petition for review of that order was denied in May of 2002, and in late August of that year, the Union requested a meeting to begin negotiations. VMMC accepted October 1, 2002 as the date of the first bargaining meeting. The parties met over 20 times during the following months. However, on September 23, 2003, the clinic manager received a decertification petition from 8 of the 19 unit members. Three days later, on September 26, VMMC withdrew its recognition of the Union, asserting that the Union no longer had the support of the employees. In response, the Union filed an unfair labor practice charge, alleging that VMMC had hired/fired employees based upon their relationship with the Union, had encouraged a decertification campaign, and had not bargained with the Union in good faith.

In the course of that case, the Administrative Law Judge (ALJ) raised the issue of VMMC’s withdrawal of recognition of the Union during the certification period. Although VMMC argued that the certification period began in the Spring of 2002 when its petition for review was denied, the ALJ disagreed, and determined that the certification period began (according to the 2000 NLRB Order) when good-faith bargaining began between the parties – in this case, on October 1, 2002. The ALJ held that VMMC had violated the National Labor Relations Act by withdrawing its recognition of the Union within the defined certification period. In response to VMMC’s argument that it should be excused from penalty because it withdrew recognition only four days before the expiration of that period, the 9th Circuit specifically held that “there is no de minimis exception for technical noncompliance with Board orders.”

The impact of this decision could be increased by the passage of the Employee Free Choice Act, anticipated to occur this year. That Act could dramatically change the union organizing process and the established steps in the process of union formation by eliminating secret ballot voting and by establishing unions based solely on the number of authorization cards signed. In that instance, as now, an employer will be obligated to bargain with a union during the certification period, but under EFCA, will face increased penalties for any failure to do so. That, coupled with this case’s holding regarding the employer’s duty to strictly observe the certification period, is likely to lead to an increase in the number of legal challenges related to union activity and bargaining in the near future.
 

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