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THE DANGER OF MISTAKING TALK FOR SOLICITING


Talking about a union during work time in a work area cannot be prohibited, says the National Labor Relations Board, unless all non-work talk also is prohibited.  What does that do to an employer's otherwise valid no-solicitation rule?  Where is the line between talking about a union (which realistically cannot be prohibited) and soliciting on behalf of or against a union during work time in work places (which can be prohibited)?  

The line is probably not where you think it is.

Boeing's struggles with the Board and the International Association of Machinists & Aerospace Workers ("IAM") in connection with its South Carolina facility has rubbed up that issue and raises a red flag.  In that case, an active employee union organizer spent time in non-work areas during non-work time seeking to convince his co-employees to support the union and trying to get union authorization cards signed. After the shift began and the employee was supposed to be working, the employee continued his discussions in favor of the union with other employees.  Boeing's supervisor met with the organizer and reminded him that he could not talk about or distribute fliers about the union during work time in a work area.  The employee was directed to Boeing's presumptively valid no-solicitation/no distribution rule.  The IAM filed an unfair labor practice charge, alleging that Boeing violated the law by banning discussions about union-related subjects while permitting other non-work talk (e.g, sports, weather, movies).  The Regional office of the Board filed a complaint and an administrative law judge agreed.  Boeing did not appeal.

The principle is not new and the ALJ cites several cases that were decided prior to the current Obama Board.  However, the application of the principle to real-life conduct in the workplace is murky at best. What is clear is that unions are more likely to raise the issue and the Regions are more likely to issue complaints alleging that the enforcement of a no-solicitation policy by a supervisor was actually prohibiting talk rather than solicitations.

Defenses based on an employer rule against discussing controversial issues (e.g., politics, religion, abortion, unions) because of a concern over abusive conduct arising out of such discussions have been unsuccessful for lack of proof that such talk, if fact, produced such unwanted behavior.  

The line between "talk" and "solicitation" is hard to draw and asks a lot of supervisors.  An invitation to a union meeting has been held to be just "talk," while, in pre-Obama Board cases, asking an employee to sign an authorization card, even where the card was not physically present during the discussion, has been  held to be solicitation.  It is questionable whether the Obama Board would go so far.  

Bottom line:  your supervisors must be trained in the differences between "talk," which cannot be prohibited unless all non-work discussions are prohibited (unrealistic), and "solicitation," which would violate a lawful no-solicitation rule.  If an employee is merely expressing an opinion about unions as good or bad, the chances are that the talk cannot be prohibited.  However, if the employee is seeking an immediate response from the listener ("sign a card"), the likelihood is that the employee is soliciting.  The space between these two extremes is great and many shades of grey.  

It is safe to say, the current Board will draw the line in the favor of limiting the enforcement of no-solicitation rules.   

 

 
 
 
 

Federal Appeals Court Enjoins NLRB's Posting Rule


FEDERAL APPEALS COURT FOR DISTRICT OF COLUMBIA ENJOINS NLRB POSTER

Today, the federal appeals court for the District of Columbia enjoined the NLRB from requiring that its Employee Rights poster be posted pending determination of the appeal filed by the National Association of Manufacturers from the decision by the federal district court of the District of Columbia upholding the NLRB's authority to require the posting of the notice.

Noting the decision of the district court of South Carolina's decision finding the posting requirement to be unlawful and the likelihood that the NLRB will cross appeal the NAM decision because of the court's denial of the power of the NLRB to enforce penalties for the refusal of an employer to post the notice, the Court of Appeals prohibited the implementation of the posting rule until after it had heard argument in September and decided all of the issues presently before it.

For now, employers who are subject to the NLRB's jurisdiction and who are not federal contractors can ignore the April 30 posting date for the Employee Rights poster. 

We will keep you posted about the poster.

 
 
 
 

Labor Board Blurs Line Between Management Rights and Protected Activity and Then Orders a "Perp" Walk


Labor Board Stretches to Blur Line Between Management Rights and Protected Activity and Then Orders a “Perp Walk”

 

In a case decided on August 11, the National Labor Relations Board affirmed an Administrative Law Judge’s determination that an employer, the publisher of the Santa Barbara News-Press, committed numerous violations of the National Labor Relations Act.  That was not remarkable.  Coercive interrogations about union activity, surveillance of union activities, requiring the removal of union buttons and signs and terminating a supervisor for refusing to commit unfair labor practices clearly violate the Act and have done so for over half a century. 

 

What was remarkable is that the Board decided an issue that was not required for the holding and, instead, appears to have gone out of its way unnecessarily to broadly define activity protected by the Act.

 

The case involved news reporters.  The publisher of the newspaper issued several directives.  The first limited the coverage of the arrest and sentencing of the paper’s editorial page editor.  The second prohibited reporters from including the home addresses of public figures (in this case, Rob Lowe) in news stories.  Finally, the publisher limited what information about the paper could be disseminated by its reporters to other news media.  The edicts resulted in a discharge, numerous resignations, a campaign to cause the cancellation of subscriptions, union organizing and, ultimately, an election which was won by the union.

 

The Board, in affirming the ALJ, held that the publisher’s editorial controls and edicts impacted the journalistic integrity of the reporters.  As a consequence, the Board said, the publisher’s conduct interfered with the protected rights of the reporters.  What moves the decision out of the outrageous category is that the actions taken by the publisher were so mixed with other unfair labor practices that it is hard to isolate what could otherwise have been a clear encroachment by the Board on management prerogatives.  Despite the Board’s protestations to the contrary, the fact remains that on some level it blurred the line between management’s rights to run its business and employee protected activity.  Whether the Board will use this case as support in the future for further limiting management authority is for another day. 

 

A couple of other things make this case worthy of comment.  First, the publisher’s stated reasons for the actions against the employees were numerous and, to the ALJ, that multiplicity smacked of pretext.  Had the publisher limited its reason for action to the management prerogative argument, the case would not have been so easy for the Board.  As in civil rights litigation, cases can be lost because an early statement about why a certain action was taken turns out to be incorrect and pretextual.  The lesson is that employers must be smart from the beginning and not rely on after-the-fact-lawyer-spin to win cases.  The reason for the action must be formulated with the law and available proofs considered before the action is taken. 

 

The second reason for reporting on this case is the Board’s amendment to the remedy ordered by the ALJ.  The amendment says a lot about the current Board’s bias against employers. 

 

In addition to the expected cease and desist, reinstatement, rescission of negative performance evaluations and make whole remedies, the ALJ ordered, again expectedly, that the employer must post a notice stating the rights of employees to engage in union activity, pledging no further violations of the Act and listing the actions it will take to remedy the prior unlawful conduct.  The actions the ALJ required from the employer were severe and extensive, directly touching virtually every employee.  There is no question that the entire workforce would know what and how the NLRB had concluded their employer violated their rights.  No one working for the employer would have any question.  No one working for the employer would be left in the dark.  Nothing more was required.  Nothing more was needed.

 

The Board, however, apparently thought there was something more that was needed – groveling.

 

The Board ordered that the remedy be amended to require a senior member of management to read the Board’s complete Order to the assembled employees or to stand next to a Board agent as the Order is read.  It is the Board’s version of a “perp walk.” 

 

Since this kind of communication was not necessary in this case to communicate with few employees of a small employer, the only motive for the Board’s action could be the demeaning of the employer. 

 

Unfortunately, I suspect there will be more of this kind of anti-management retaliatory conduct by the Board in the future, as it continues to increase the ante for employers who are charged with violations of the Act.  By raising the remedial stakes to an unconscionable level, does the Board feel that it will be able to coerce employers into settling cases of questionable merit or inconsequence, thereby aiding unions in their organizing efforts?  If this is the motive, the Board is actively trying to subvert the law and process in favor of organized labor. 

 

 
 
 
 

LABOR BOARD CASES ABOUT TO GET MORE EXPENSIVE TO DEFEND


Labor Board Cases About to Get More Expensive to Defend

 

On July 27, the National Labor Relations Board issued a press release announcing that it had hired a new “Lead Technology Counsel.”  This is a new position at the Board and a signal that the Obama Board is intent on making the cases before it more complex and expensive for employers to defend.

 

The office of the Technology Counsel will be expected to develop Board guidelines and training programs for agents and lawyers with regard to e-discovery and litigation holds.  E-discovery is the term being used in civil litigation to describe the retrieval and exchange of documents and electronically stored information, such as emails, during the investigation, discovery and litigation of particular matters.  “Litigation hold” is the term used to describe the process by which a prospective or actual litigant is required to preserve all documents, including those stored electronically, that may be relevant to a matter about which the prospective litigant has a reasonable belief may become the subject of litigation or is in actual litigation.

 

Employers that have been the targets of federal or state investigations or parties to a civil rights complaints or other employment charges or lawsuits know what e-discovery and litigation holds has done to explode their costs of defense.  In a recent “routine” employment discrimination lawsuit, for example, the reported cost of e-discovery and litigation hold alone approached $750,000, by the time the cost not only of preserving and retrieving, but also reviewing the nearly 1.5 million documents, most of which were emails, that were identified as possibly relevant to the case.

 

Our experience to date has been that the Labor Board’s agents know very little about e-discovery and rarely, if ever, pursue it in either the investigation or trial of a representation petition or charge.  Further, many lawyers defending labor cases before the Board have not been sending litigation hold letters and procedures to their clients when new cases are filed or suspected.  All of that is about to come to an end. 

 

The Board’s new Lead Technology Counsel (P. Brian See of Seyfarth Shaw) will be expected to, as the Board stated in its press release, “assist Agency attorneys and staff in crafting policies and procedures relating to managing electronic information and litigation holds. 

 

What this means is that Labor Board investigations and trials will now take on all of the trappings of federal litigation, including extensive discovery demands and procedures.  What up to now has been a relatively speedy and less costly process will be neither. 

 

Employers that have active Board cases or a reasonable belief that a situation may result in a Labor Board action, either a question of representation or unfair labor practice charge, should issue litigation hold directives to managers and supervisors to preserve all potentially relevant documents, including those store electronically, such as emails.  In addition, any scheduled document destruction policy must anticipate and contain features that permit Employers to make exceptions.  Going forward, employers must anticipate that the Board’s investigating agents and trial lawyers will be issuing sophisticated demands for the production of broad classes of documents that, if ignored or handled poorly, may result in decisive negative inferences. 

 

Clearly, employers should instruct supervisors and managers that electronically stored documents, such as emails, may have to be produced to the Labor Board in the event of a representation or charge case and that conclusions, including those of union animus or interference with the exercise of rights protected by the NLRA, may be made by the Board and a Court based on what one of them may have written.  Nothing should ever be preserved or put into an email that the employer would not want to be produced to the Labor Board or Court.

 

The processing and defending of Labor Board cases has just become more complex and expensive to defend.

 

 
 
 
 

WEBINAR: NLRA for Non-Union Employers


 

 

 

 

 

 

You are invited to my Webinar on the application of the National Labor Relations Act to Non-Union employers on Thursday, June 16. 

 

 

The html for the Webinar is below.    To register, click on Register:  Union-Free Strategies or go to the Duane Morris Institute website, click on Seminars/Webinars and click on the Webinar.

 

Duane Morris Institute presents the webinar
NLRA for Non-Union Employers

 

 

 

 

 

Thursday, June 16, 2011

 

 

 

 

 

 

 

 

Pacific: 10:00 a.m. to 11:00 a.m.
Central:
12:00 p.m. to 1:00 p.m.

 

 

Mountain: 11:00 a.m. to 12:00 p.m.
Eastern: 1:00 p.m. to 2:00 p.m.

 

 

 

 

 

Presented by
James R. Redeker

 

 

 

 

 

This webinar is approved for CLE credit in the following states:
PA, NJ, NY, CA and FL
1.0 HRCI

 

 

 

 

 

 

 

 

ABOUT THE WEBINAR

 

 

The Chairman of the National Labor Relations Board has stated that most non-union employers “don’t have a clue” that the National Labor Relations Act applies to them. This webinar is more than just a clue; it is an organized explanation not only of the NLRA and its application to non-union employers, but also a detailed discussion of the Labor Board’s “hot buttons,” including rules about social media, codes of conduct that chill union activity, access to the employer’s property by off-duty employees, and “nip-in-the-bud” cases.

 

 

 

 

 

 

 

 

 

 

For more information on financial assistance, please contact Deborah Margulies at dlmargulies@duanemorris.com or (215) 979-1957.

 

 

 

 

 

 

 

 

www.duanemorrisinstitute.com

 

 

 

 

 

IN THE WAKE OF THE DREAMLINER: THE LABOR BOARD PREPARES TO CHANGE THE RULES ON BARGAINING OVER DECISIONS TO RELOCATE WORK


IN THE WAKE OF THE DREAMLINER

 

THE LABOR BOARD PREPARES TO CHANGE THE RULES ON BARGAINING OVER DECISIONS TO RELOCATE WORK

 

On May 10, 2011, the Acting General Counsel of the National Labor Relations Board sent a memo to all of the Board’s Regional Offices telling them to submit all pending cases involving the issue of whether the employer had a duty to bargain with the union representing its employees about a decision to relocate work.  In a speech given by Solomon on June 9, he stated the reason for the Memo: he wants to find an appropriate vehicle for the Board to reconsider the Board’s long established rules governing bargaining over decisions about taking work out of unionized plants and moving it to more friendly environs.  Apparently, the fire-storm Mr. Solomon caused by the complaint against Boeing for its decision to place work in a new, non-union South Carolina plant rather than in a strike-plagued unionized plant in Washington was not enough for him. 

 

Mr. Solomon’s instruction follows Chairman Leibman’s musings in a case published on March 31, 2011, that she believes it may be time to require employers to provide information to its union detailing the reasons why it may decide to relocate work, even where the decision could not be affected by anything a union might do.  See Embarq Corporation and IBEW, 356 NLRB No. 125 at page 2.  A change in the rule as suggested by Leibman (and now contemplated by the Acting General Counsel) would be a sea-change in the way unionized employers will be required do business..

 

The current rule was developed through numerous cases and finally settled in 1991 in Dubuque Packing Company, 303 NLRB 386, 1991, enfd. in pertinent part 1 F3d 24 (D.C. Cir 1993) review denied 511 U.S. 1138 (1994).  Broadly stated, the rule is that where company’s a decision to relocate work was for reasons that did not sufficiently implicate labor costs so that the Union could do nothing that would cause the reversal of the decision, the employer would not be required to bargain that decision with the union.  If, however, the Union could do something to keep the work (such as by reducing labor costs through concessions), the employer would be obligated to bargain about the decision and give the Union an opportunity to make the necessary changes.  Even if the employer would not be required to bargain about the decision to move work, it still would be required to bargain about the effects of the decision (e.g., severance).

 

Currently, if a Union believes that the decision was something they could have reversed by giving concessions, it can challenge the decision through a refusal to bargain charge against the employer.  In such a case, the Company would have to show that the Union could not or would not have made concessions sufficient to stop the work relocation.  The Labor Board, after a trial, would decide whether the Union could have made sufficient concessions and whether the Company violated the law by not bargaining about the decision.  The Board would have the equitable power to require a reversal of the decision, pending bargaining. 

 

Bargaining over a decision to relocate work would require the Company to give the Union the facts on which it based its decision and its conclusion that the Union could make no concession that would induce the Company to change the decision.  Because most Companies do not wish to subject the decision to relocate work to what could be protracted and contentious union negotiations, the preferred course of action is to analyze the factors within the confidential walls of the management offices, leaving it to the Union to challenge the decision in retrospect without interfering with the immediate flow of business.

 

The scenario and process that Leibman is considering is dramatically different:

 

To encourage more constructive good-faith bargaining, we might modify the Dubuque framework, for example, by requiring the employer to timely advise the union whether its contemplated relocation plan turns on labor costs.  If the relocation does not turn on labor costs, the employer would be required to so advise the union and explain the basis of its decision.  If it does turn on labor costs, the employer, upon timely request, would be required to provide the union with information about the labor-cost savings and advise whether, in its view, the union could make concessions that could change its decision.  If the employer provided the information, and the union failed to offer concessions, the union then would be precluded from arguing to the Board that it could have made concessions.  If the employer failed to honor information requests where labor costs are a factor, it would be precluded from arguing that the union could not have made concessions.

 

What is troubling about Leibman’s process is that, in cases where the employer, in good faith, has concluded that the Union could not offer concessions sufficient to keep the work from being transferred, it would still have to deliver to the Union the bases for its decision.  If the Union then seeks the information that backs up the reasons, the Employer would be obligated to provide that information, some of which may be competitively sensitive, or be subject to a refusal to bargain charge.  What would follow could be protracted negotiations. The drag on the ability to make timely decisions could be significant and further justify the unwillingness of companies to put new work into unionized facilities.  Also, the reasons for a decision may implicate other strategic plans of the Company that would, if revealed, endanger other competitive edges that the Company is seeking to achieve, the relocation of work being just a piece in a much larger puzzle.

 

Leibman’s “musings” are additional indications that she is on a drive to broaden the powers of the National Labor Relations Board from an enforcement agency into a policy-making body.  If unchecked, Leibman will inject the Labor Board into the process of doing business to an unprecedented degree and far beyond what Congress intended when it passed the NLRA. 

 

It is clear from the preamble of the NLRA that Congress’s intent was that the Act should be, in both purpose and structure, reactive and remedial, not policy-making.  Even in the portion of the preamble that speaks about “encouraging the practice and procedure of collective bargaining,” the means of doing so in the context of remedying violations of the law and not by making policies:

 

It is hereby declared to the policy of the United States to eliminate the causes of certain substantial obstructions to the free flow of commerce and to mitigate and eliminate these obstructions when they have occurred by encouraging the practice and procedure of collective bargaining and by protecting the exercise by workers of full freedom of association, self-organization, and designation of representatives of their own choosing, for the purpose of negotiating the terms and conditions of their employment or other mutual aide or protection.  29 U.S.C.A. Section 151 (emphasis added)

 

Seeming to acknowledge the statutory limitation on the Board’s power, Leibman stopped short of suggesting that the failure of an employer to submit information about its decision to relocate work to the Union in advance of making the decision would constitute an independent violation of the Act.  Rather, she would give the failure to do so (and likewise the failure of a Union to propose concessions to stop the transfer) a preclusive effect in any later challenge to the action before the Board. 

 

These devices of choosing to enforce or not to enforce or to accept or not to accept certain defenses in enforcement proceedings are, in my view, attempts to achieve by circumspection what the law does not permit directly.  As such, the effort is not only intellectually dishonest, but also is reprehensible.  Either way, Employers need to be aware of yet another possible push by the current Labor Board to reshape the way American companies do business.  Curiously, this single-minded drive to deliver more power to unions at the expense of productivity and competitiveness may have the unintended consequence of driving more work away from unionized plants.  At a minimum, companies are well advised to do those things necessary to remain non-union to avoid the dilemma that the current National Labor Relations Board is creating for companies that have to recognize and deal with unions. 

 

 
 
 
 

The Fierce Fight Over A Label: Is The Obama National Labor Relations Board Really A Pro-Union Activist?


The Fierce Fight Over A Label: 

 

Is The Obama National Labor Relations Board A Pro-Union Activist? 

 

 

On February 11, 2011, the House Subcommittee on Health, Education, Labor and Pensions of the Committee on Education and the Workforce conducted an oversight hearing on the National Labor Relations Board.  At the hearing, several witnesses accused the Board of overreaching its statutory authority, invading the province of Congress and abandoning long-established institutional norms.  In short, they labeled the Board a “Union Activist.”

Both the Chairman of the Board, Wilma Leibman, and Acting General Counsel of the Board, Lafe Solomon, shot back denials, citing as evidence that Republican controlled Boards in the past had often reversed precedents and, therefore, turn-about is fair play.  Besides, they both implied, their interpretations of the National Labor Relations Act we long needed corrections of prior perversities. 

The debate over whether the Obama Board is an activist for unions or an equalizing hand, is not the point and I leave that labeling to the reader.  Here is a brief review of recent Board decisions that, based on your point of view, either steadied or rocked the boat…or, as some would argue, punched a hole in the bottom.  Whether an activist or a correctionist, the Labor Board demands the attention of all employers, unionized and union free:

Atlantic Scaffolding:

 

The employer was a nonunion contractor working on Exxon property to erect scaffolding for the use of other contractors during a “changeover” at Exxon’s refinery.  The changeover cost Exxon “millions of dollars” a day due to lost production and utilized over a thousand contractor employees. 

Employees of the scaffolding employer were upset about a change in wage policies and, on the first day of the changeover, staged a work-stoppage to force a reversal of the policy.  Employees who went off duty from one shift stayed on the premises to support about a hundred others from the on-coming shift who refused to work.  The striking Employees stayed in the lunch tent of the employer inside the refinery for about an hour (three hours for the off-duty employees) until Exxon told them to leave, transporting them to one of the parking lots on Exxon’s property.  They remained for another hour in the parking lot, until Exxon told them again to leave.  The strikers went to a vacant area that was still on Exxon property.  Three hours later, about five and half hours after the stoppage had begun, Exxon told them to leave its property altogether and the strikers moved to a public park.  On the following day, some of the strikers returned to work, but seventy continued the work stoppage.  On the next day, two days after the strike had started, the employer, having concluded that the employees were giving no indication of returning to return to work, terminated the employment of the employees.  With the aid of a union, the terminated non-union employees filed an unfair labor practice charge, alleging that they were discharged because of their exercise of rights (a concerted refusal to work) protected by the NLRA.  The work stoppage idled hundreds of contractor employees, in addition to the strikers.

After trial, an Administrative Law Judge (ALJ) held that, while the initial stoppage and delivery of a petition of protest was an exercise of protected rights, at some point over the five and half hours of in-plant work stoppage, causing extraordinary damages to Exxon, the employees lost their protections of the law and were at risk of discharge.  The ALJ cited prior precedents back to 1986 which established that in-plant work stoppages were protected for only a “reasonable” period of time and that, in at least one circumstance, a stoppage of as little as thirty minutes was beyond reasonable and lost the protections of the Act.  Here, since the strikers were on the property of Exxon for more than five and half hours, the ALJ found, their stoppage was clearly beyond reasonable.

The Board reversed the ALJ and held that, because the strikers were peaceful and did not cause disruptions to the work beyond those resulting from their nonperformance of work, the employees had been engaged in protected activity for the duration of the stoppage and could not be terminated without violating the NLRA.  The fact that the strikers had timed their work stoppage for when it would have the maximum impact, said the majority, was consistent with a basic principle of the statute, i.e., “the right of employees to withhold their labor in seeking to improve their terms of employment, and the use of economic weapons such as work stoppages as part of the ‘free play of economic forces’ that should control collective bargaining.”  The Board expressly refused to balance the rights of the property owner and the strikers.  The nonunion employees were entitled to reinstatement with back pay, retroactive benefits and interest compounded daily.

Stevens Media, LLC, d/b/a Hawaii Tribune-Harold:

A supervisor notified an employee that he wanted to meet with him.  A colleague told the employee that the purpose of the meeting was to give the employee a warning and recommended a witness.  The employee requested a witness, but the supervisor denied the request.  The employee called his union representative and asked for guidance.  The union representative advised him to attend the meeting and to take notes.  At the suggestion of other employees, however, the employee brought into the meeting a concealed recording device and recorded the meeting.  When the supervisor later learned of the recording, he suspended the employee for “defiance.”  The employer then issued a rule barring secret recordings of work-related meetings.

The Board, reversing the ALJ, found that the employee’s suspension violated the NLRA because the employee’s conferring with other employees constituted concerted activity and the secret recording was not so egregious that it removed the protections of the law.  The Board also held that the rule was invalid because it was promulgated in response to the exercise of protected conduct.  Although not necessary to decide the case, the Board went on to hold that the rule itself (not just its promulgation in the face of protected conduct) was illegal as “overly broad,” in that it prohibited employees from making secret recordings of matters relevant to the workplace. 

Mandalay Bay Resort & Casino

 

A union petitioned to represent a group of about 140 employees.  The election results were 110 for the union and 123 against representation with 4 challenged ballots.  The union filed 19 objections, all of which were dismissed after trial by the Administrative Law Judge.  On appeal, the Board reversed the ALJ and ordered a new election.  The Board held that the objection that the Employer had solicited grievances and impliedly promised to resolve one of them had merit, dictating the need for a rerun election.

During the campaign leading to the election, two senior officers of the Employer met with employees for the purpose of understanding work related issues and to talk about the union organizing.  During the course of one of the meetings, employees complained about the policy of using part time employees to reduce overtime opportunities for full time employees.  The officers responded that the policy was a failed strategy and that the situation was being “addressed and looked at.”  There was no evidence that either of the officers indicated what, if anything, would be done.  Nevertheless, the Board majority found that the statements “implied” a promise of a remedy that would favor the employees and that, because the officers of the company had not had similar employee meetings prior to the election campaign, the employees would “tend to anticipate improved conditions of employment which might make union representation unnecessary.”  Therefore, the election was tainted and had to be rerun. 

Jurys Boston Hotel:

 

At the expiration of the term of a labor contract, employees filed a petition to decertify the union.  In the campaign period prior to the election, the Employer maintained a cooperative position with the Union and even wrote to the employees expressing the fact that its relationship with the Union was positive.  In addition, the Employer instructed it supervisors to take neutral if not positive line concerning the Union in their conversations with employees.

Prior to the election, but not prior to the filing of the decertification petition, the Union filed unfair labor practice charges concerning seven rules of conduct that it stated violated the law, including an overbroad no solicitation rule, a prohibition against loitering on the property and a grooming standard that prohibited employees from wearing union buttons while at work in the hotel.  All of the rules were old and predated the initial recognition of the Union and the successful negotiation of the labor contract.  When the Union filed its charge, the Employer issued a memo to all employees that withdrew the rules and stated that no rule was intended to interfere with any employee’s legal right to engage in union activity.

The Union lost the election 47-46.  After trial, the Administrative Law Judge held that, while the rules violated the Act, no employee had been disciplined for disobeying any of them during the election period, and that there was no evidence that any employee had even read the rules, let alone that any of the rules had an impact on the election. 

The Board reversed the ALJ, holding “the three rules in question, individually and together, had a reasonable tendency to chill or otherwise interfere with the prounion campaign activities of employees during the election period.”  In making its decision, the Board gave no weight to the fact that the Employer had disavowed the rules prior to the election and had told employees that it did not want any rule to inhibit any employee from engaging in union activity.  The Board also gave no weight to the undisputed finding by the ALJ that the rules had no impact on the election.

Parexel:

 

A nurse complained about her wage rate.  When she continued to complain to her supervisor, the Employer terminated the employee because it was concerned that the employee would cause trouble in the workplace.  The employee had not discussed her complaint with any other employee, although another employee had told her that she and a relative had gotten raises. 

After trial, the ALJ held that the employee had acted on her own behalf and had not engaged in any concerted activity protected by the NLRA; therefore, her discharge did not violate the law.  The Board reversed the ALJ, stating that the discharge had been “pre-emptive,” because the employer was concerned that the employee may engage in concerted activity and that such “pre-emptive” actions violate the law.

American Medical Response:

 

The Company’s social media policy prohibited disparaging remarks about the company or any supervisor.  After an argument with a supervisor that led to discipline, an employee posted on her Facebook page that her supervisor was a “psycho.”  The employee was fired.  The Board issued a complaint against the employer, alleging that, because the comment related to the workplace, the employee’s conduct was protected by the NLRA.  The case was settled in February.

Reuters:

 

A manager of the Company solicited from employees suggestions on how to make the workplace better.  The local shop steward, using Twitter, replied that “One way to make this the best place to work is to deal honestly with Guild members.”  The supervisor met with the employee and told her that the comment was offensive.  The supervisor told the Board that she had felt “intimidated” by the supervisor.  The Board issued a complaint, alleging that the employee’s protected conduct was infringed by the supervisor.

Eliason & Knuth:

 

A union had a dispute with a non-union building contractor.  The contractor was doing work for both a restaurant and a hospital.  There or four union representatives held banners approximately four feet by twenty feet as close as fifteen feet in front of the restaurant and one thousand feet in front of the hospital.  In addition, union representatives conducted hand billing at both locations.  The banner in front of the restaurant said in large letters “Don’t Eat RA Sushi” and at the hospital “Shame on [name of hospital]”.  Flanking the words in the banner were the words “Labor Dispute” in smaller letters.  The handbills, but not the banners, stated that the "labor dispute" was with a non-union contractor and not the restaurant or the hospital themselves.

To threaten, coerce or restrain a company with which the union does not have a direct dispute in order to force the company to stop doing business with an employer with which the union has the direct dispute violates the secondary boycott provisions of the NLRA.  The Board held, however, that, since the banners were being held stationary, they were no more confrontational than are banners on the Fourth of July or which preceed a high school marching band.  Therefore, the union was simply informing the public of a dispute with the non-union contractor and did not threaten, coerce or restrain either the restaurant or the hospital to force them to stop dealing with the contractor.   

New Star General Contractors, Inc.

 

A union had a dispute with two general contractors.  During the dispute, the union wrote letters to the contractors’ customers asking them not to do business with the contractors.  The union also used large banners at 19 different sites where the contractors were working and, in some locations, put the banners in front of gates reserved for employees of the contractors’ customers. 

The Board found the conduct was legal and did not constitute “signal” picketing to the employees of the customers urging them not to work.  Therefore, it was not an effort to coerce the customers to stop doing business with the contractors.

Dana Corporation

 

The employer agreed with a union to be neutral to and cooperate with the union in its efforts to organize the employer’s employees.  In partial fulfillment of this commitment, the employer provided the union with the names and addresses of the employees and told its employees that it could work positively with the union.  In addition, the employer agreed to recognize the union based on a card check.  In return, the union agreed that any first contract would be for at least four years, would keep healthcare costs at competitive levels, would allow for mandatory overtime, would permit the company’s team system and would have bargaining differences resolved by an arbitrator, not a strike.

The Board found that the agreements did not constitute “dealing” with the union, but constituted a mere “framework” for a possible agreement.  Therefore, said the Board majority, the employer did not violate the provisions of the law that prohibit an employer from dealing with a union that has not proven that it represents a majority of the employees.  In effect, the Board approved of bargains by unions to obtain employer neutrality and cooperation agreements, giving the green light to further “corporate campaign” coercive conduct by unions to silence employers.

Boeing:

 

The Board has recently alleged that Boeing violated the law when it chose to put a production line in a non-union plant because of a history of multiple and long strikes at its unionized plant.  Simply, Boeing did not want the risk of production delays (and customer penalties) caused by work stoppages.  The Board asserts that a decision based on a history of work stoppages is in retaliation for the exercise of the protected right to strike.  Apparently according to the Board, Boeing is required by law to continue to operate in a manner that gives its unions the greatest leverage possible over its business.

General Counsel Actions:

 

On October 2, 2010 and November 1, 2010, Acting General Counsel Lafe Solomon issued two directives to the Regional offices of the Board.  In the first, he instructed the Regions to be on the alert for alleged illegal conduct by employers during union organizing and, when suspected, to seek permission to file for federal court injunctions requiring, for example, the interim reinstatement of an employee who was allegedly discharged for engaging in union activity. In his instruction, Mr. Solomon told the Regions to respond quickly and effectively to nip illegal employer conduct in the bud. 

In the second memo, the General Counsel expanded the kinds of cases that justify injunction applications to include such things as interrogations, surveillance, promises, threats and soliciting of grievances for the purpose of resolving them to affect union activity.  In addition, Mr. Solomon detailed several remedies, in addition to injunctions, that should be used in these “nip-in-the-bud” cases:

·                     Requiring a Notice of employee rights, including the right to form and join unions, to be read to the assembled employees by a senior officer of the employer or by a Board agent with the senior officer standing next to him/her.

·                     Giving the union access to company bulletin boards

·                     Requiring the employer to provide the contact information of all employees to the union

·                     Giving the union organizers access to the employer’s premises during working hours to speak with the employees

·                     Giving union organizers the right to attend and speak at any group meeting held by the employer during working hours to discuss union representation.

·                     Giving union organizers the right to deliver a pre-election speech in the workplace to the employees

************************

Arguing about labels clouds the issue.  The Board may be engaging in pro-union activism or just leveling the playing field.  The label is in the eye of the beholder.  Whatever they are doing, however, the rules are changing and employers must be alert to the changes that affect them. 

In acknowleging this caution, it cannot be overlooked that we have yet to see promised decisions on the following issues:

·                     Restricting no solicitation/no distribution/no access and social media rules

·                     Narrowing the definition of supervisor

·                     Reducing the size of appropriate units to match the extent of union support

·                     Inclusion of agency employees into bargaining units of host company employees

·                     Posting the rights of employees to engage in union organizing and other concerted activities

·                     The legality of rules of conduct that “may” possibly “chill” union activity (e.g., confidentiality of wages and other terms and conditions of employment and disrespectful, harassing, disparaging, damaging and abusive conduct directed toward the company or any employee, to name a few) 

 

Anyone want to guess how those decisions will come out? 

 

Often ignored is the fact that the Board’s interpretations of the law are always retroactive.  For example, if the Board speculates that a particular rule may possibly chill union activity and, therefore, finds the rule unlawful, that rule will be found to have always been unlawful and any other employer with that same rule will be at risk for actions it took to enforce the similar rule, even though those actions predated the Board’s decision.  The Board doesn't say  “in thirty days this rule will be illegal.”  The employer always acts in its own peril when it comes to the Labor Board.

 

It's wise, therefore, for every employer to examine its workplace rules and practices in light of not only what the Board does but also what the Board may do.  That’s not an easy exercise, but, on the risk/benefit continuum, the exercise is worth it.

 
 
 
 

LOOSE LIPS MAY SINK DREAMLINER


National Labor Relations Board files complaint against Boeing for decision to put some Dreamliner production in a non-union plant[Read More]
 
 
 
 

LABOR BOARD BROADLY DEFINES PROTECTIONS FOR NON-UNION STRIKERS


National Labor Relations Board holds that non-union employees engaged in a five and a half hour work stoppage are protected from discharge by the National Labor Relations Act[Read More]
 
 
 
 

Labor Board Finds Discharge of Employee for Secretly Recording Disciplinary Meeting with Supervisor Violated the Law


In a case that has not been picked up by the mainstream press, but which further evidences the pro-union activism of the current National Labor Relations Board (“Board”), an employer has been found by the Board to have violated the National Labor Relations Act when it discharged an employee for secretly recording a meeting with his supervisor. Further the Board held that the employer also violated the Act by issuing a rule that prohibited employees from making secret audio recordings in the workplace. See Stevens Media, LLC, 356 NLRB No. 63 (2/14/2011)

The facts of the case were as follows: A supervisor informed an employee (newspaper reporter) that he wanted to meet with him. A colleague of the employee said that the purpose of the meeting was to give the employee a warning and suggested that he needed a witness. The employee then requested that a witness be present, but the supervisor denied the request. The employee called his union representative, who advised him to attend the meeting and to take notes. However, at the suggestion of other employees, the employee brought a recorder into the meeting and secretly recorded it. The supervisor learned of the secret recording, and discharged the employee for what the supervisor characterized as “the worst act of defiance in the news room.” Thereafter, the company issued a memo to employees prohibiting all secret recordings of meetings.

The Board decided first that the employee’s conduct constituted “protected concerted activity” because the employee had consulted with other employees. Therefore, secretly recording the meeting constituted an extension of the “concerted activity.” Noting that, while concerted activity can lose its protection under the NLRA if it is “egregious,” the employee’s secret recording was not so egregious that it lost its protection. In support of its conclusion, the Board relied on a two findings: 1) the employer did not have a rule barring such recordings, and 2) the recording did not break Hawaii law.

With respect to the employer’s subsequent rule prohibiting secret recordings in the workplace, the Board found the issuance of the rule was unlawful because it had been in response to the employees’ protected conduct. However, the Board did not stop there. The Board also, and gratuitously, held that the employer’s rule prohibiting employees from making the secret audio recording was too broad and ordered the employer to rescind the rule and to notify its employees in writing that the rule was no longer in force.

The reasoning of the Board in this case puts employers on the horns of a dilemma with respect to work rules. On the one hand, the Board cites the absence of a policy against secret recordings as one reason why the recording by this employee was not so egregious that it lost the protections of the Act. On the other hand, the Board found the employer’s subsequent rule against secret recordings was too broad and had to be rescinded because it violated the Act.

This case is just another in an increasing number of cases (with more to come) where the Labor Board has expanded the scope of activities protected by the law and critically examined rules of conduct in the workplace to determine if any may “chill” union activity. That the employee was represented by a union did not factor into the decision and, therefore, the case can be used to further the Chairman of the Board’s expressed intent to scrutinize vigorously the rules of conduct in non-union workplaces.

In this regard, the Chairman is already on record that a host of workplace rules in non-union companies will be found to be in violation of the Act because they are too broad and may “chill” union activity. Rules the Chairman has already stated violate the Act are the following: divulging private or confidential information to third parties, making false statements about the employer, improper conduct, conduct that is disloyal or disruptive, use of abusive or profane language, and intimidation, interfering or otherwise acting offensively toward other employees.

Employers should review their rules/codes of conduct now to avoid an easy way for terminated employees to obtain reinstatement with back pay and/or an easy "victory" for a union seeking to organize an employer's employees and appear as the protector of employee rights.  Adding to the urgency is the Labor Board's current use and threatened use of extreme and draconian remedies beyond the simple reinstatement with back pay of discharged employees for violating rules the Board believes are too broad could chill union activity.  Some of these remedies include federal court injunctions requiring reinstatement and back pay of the employee prior to the final adjudication of the merits of the discharge, reading to assembled employees by the employer's senior officer of a list of  employee rights to organize and to participate in union/concerted activity, permitting union organizers to be in the non-work areas of the facility to facilitate their talking to employees and obtaining authorization cards, and providing blocks of compensible time during which employees would be required to attend meetings in the facility conducted by union organizers. 

 
 
 
 
 

James Redeker

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The opinions expressed on this blog are those of the author and are not to be construed as legal advice.