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FEDERAL COURT FINDS NLRB'S EMPLOYEE RIGHTS POSTING UNLAWFUL


FEDERAL DISTRICT COURT DECLARES NLRB’S “EMPLOYEE RIGHTS POSTER” UNLAWFUL ….BUT DECISION MAY NOT STOP YOU FROM HAVING TO POST IT

 

Judge David Norton of the federal district court in South Carolina in a case brought by the South Carolina Chamber of Commerce on Friday, April 13, held that the rule announced by the NLRB in September of last year that employers must post a Notice of Employee Rights under the National Labor Relations Act exceeded the Board’s statutory authority and is, therefore, unlawful.  Judge Norton held:

 

Based on the statutory scheme, legislative history, history of evolving congressional regulation in the area, and a consideration of other federal labor statutes, the court finds that Congress did not intend to impose a notice-posting obligation on employers, nor did it explicitly or implicitly delegate authority to the Board to regulate employers in this manner.”

 

In the opinion, the Judge excoriated the Board by noting that:,

 

“The Board also went seventy-five years without promulgating a notice-posting rule, but it has now decided to flex its newly-discovered rulemaking muscles,”

 

As noted in my blog last fall when the proposed rule was first published, nothing in the National Labor Relations Act mentions, let alone authorizes the Board to compel employers to post, a notice advertising the protections of the Act for those employees who engage in or contemplate engaging in union activity.  Simply, even the Obama Board cannot ignore the law to further its partisan agenda.

 

The Board’s action was contrasted to the explicit authority granted by Congress to various other agencies to publish and require notices in non-remedial situations, e.g., employment discrimination, workplace safety.

 

This decision conflicts with an earlier holding by Judge Amy Berman Jackson of the federal district court of the District of Columba that upheld the Board’s authority to require the posting. 

 

Unfortunately, it is not entirely clear what the Board or the courts will do now.  The South Carolina decision is just that, a South Carolina decision.  It is possible that the Board may take the position that its effect will not go beyond that court's jurisdiction.  The district court of South Carolina is in the Fourth Circuit (Virginia, West Virginia, Maryland, North Carolina, South Carolina).  Consequently, unless you are in one of those states, the decision may not shield you from the obligation to post the notice by April 30.  However, it is possible that the South Carolina decision will be construed to have a broader application because it appears to enjoin the Board and its General Counsel from doing anything to enforce the rule.  

For now, employers who do not wish to voluntarily post the notice should wait until their obligation, if any, is further clarified or, at least, until after the Board indicates what it believes the application of the South Carolina decision should be.     

 

Hopefully, the Board will suspend generally the obligation to post the notice, pending the resolution of the discrepancy between the holdings of the District of Columbia and South Carolina district courts and other outstanding issues.  Most certainly, the Board will appeal the South Carolina decision, just as the DC decision has already been appealed.  What it will do or be permitted to do in the meantime is still unclear.

 

One can hope the Board will again delay the application of the rule to permit time for these issues to be resolved, but prudence suggest that we not depend on the realization of our hopes when it comes to this Labor Board. 

 

 

 

 

 

 

 

 

 

 

 

 

 
 
 
 

BAD HAIR DAY EVOLVES INTO CONDUCT PROTECTED BY THE NLRA


BAD HAIR DAY EVOLVES INTO CONDUCT PROTECTED BY THE NLRA

Nichole Wright-Gore, a supply clerk in a non-union nursing home, had a bad hair day.  To hide her embarrassment, she wore a hat.  An executive of the nursing home told her that wearing a hat in the workplace violated the company’s dress code and she was told to take off the hat or go home.  She went home rather than suffer the embarrassment of having other employees see her bad hair. 

The following day, Wright-Gore returned to work, again wearing a hat.  Presumably, she thought that the fact that employees were invited to wear Halloween costumes that day would give her greater latitude.  Again, she was told to remove the hat.  As she took off the hat, she complained that the company was unevenly enforced its dress code.  Her complaint generated a written warning for insubordination.

Over the next two weeks, Wright-Gore talked to other employees about her bad hair days and the disparate enforcement of the dress code.  The other employees “generally” agreed and sympathized with her.  She also used her cell phone to take pictures of other employees who appeared to be out of compliance with the dress code.  As she talked to other employees about her alleged mistreatment, she showed the pictures as “proof” of the validity of her complaint.  When one employee complained to his manager that Wright-Gore had taken his photograph without his consent and had shown it to other employees, Wright-Gore was fired for taking photographs inside the nursing home in violation of the facility’s no photograph rule.

Wright-Gore filed an unfair labor practice charge, alleging that her discharge violated the National Labor Relations Act.  Her charge asserted that her taking of photographs was protected as “concerted activity” in protest of a work rule.  The Board filed a complaint against the nursing home and an Administrative Law judge of the Board agreed with the Board.  The nursing home was ordered to reinstate Wright-Gore with full back pay. 

The employer appealed the case to the full Board, which, expectedly, affirmed the ALJ.  The employer then filed an appeal with the Federal Court of Appeals for the Fourth Circuit.  Both before the Board and in its appeal to the Court, the employer argued that the employee was motivated solely by self-interest and had been engaged in a personal, rather than group, campaign.  Therefore, contended the employer, Wright-Gore was not engaged in concerted activity protected by the National Labor Relations Act. 

In an unpublished opinion filed on October 28, 2011 (NLRB v. White Oak Manor, 4th Cir. No. 10-2122), the Court affirmed the Board’s decision and ordered Wright-Gore reinstated to her job and made whole for any losses due to her discharge.  In deciding the case, the Court agreed with the Board that, when the employee sought the support of co-workers, her conduct went beyond her self-interest and became protected by the law.  The fact that she was not asked by the employees to be a spokesman on their behalf was not fatal to her claim.  Further, the fact that she was not fired for violating the dress code but for violating the rule against taking photographs was not a sufficient defense because there was evidence that other employees had taken, posted and circulated photographs taken within the facility in the past without being disciplined and the taking of photographs was part of a related sequence of events. 

The employee’s personal protest involving the disparate enforcement of the dress code, of which the violation of the no-photograph rule was a part, had morphed into concerted activity protected by the National Labor Relations Act. 

There are several lessons to be learned from this case:

  • A Court on review will give significant deference to the Board’s interpretation of the law.  As a consequence, goofy Board decisions may survive judicial review.
  • The employee’s complaint about the dress code began as something very personal, but the mere fact that the employee sought emotional support from other employees was sufficient for the Board to conclude that the employee was engaged in concerted activity.  That’s the goofy part.
  • Once protected conduct is found, the Board will find subsequent related but different events to be protected as well.  Here, the employee was discharged for violating a rule that was different from the rule she was protesting because the violation of the no-photograph rule was linked to the events about which the employee was protesting. 

What is “common” about this case is that the failure to enforce a rule consistently always raises the question of “why in this case?” 

This question is at the heart of many complaints brought under many laws, including Title VII, state civil rights laws and, as here, the federal labor law.  Employers must account for inconsistencies in enforcement of rules at the time the rule is enforced if the inconsistencies are not to be the basis for subsequent liability. 

When deciding issues of discipline and discharge particularly, employers can no longer restrict their analyses to protections afforded under the civil rights laws.  Now, the investigations must include whether the employee’s conduct may be protected concerted activity under the National Labor Relations Act.

What is not “common” about this case is the a frighteningly broad definition given by the Board to what constitutes protected concerted activity.  While employers may assume that courts will ultimately bring reason into play and correct the Board’s excesses, the assumption is often wrong because courts will give the Board’s interpretations of the Act, even the goofy ones, great deference on appeal. 

 
 
 
 

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. 

 

 
 
 
 

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]
 
 
 
 
 

James Redeker

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