Management Memo

Management’s inside guide to labor relations

Federal Judge Disregards NLRB’s Murphy Oil Holding and Dismisses Employees’ Wage/Hour Claims

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Last week we reported that the NLRB continues its assault on arbitration agreements in spite of judicial rejection of its holdings.  Days after our post, another federal judge disregarded the NLRB’s holdings and actually dismissed employees’ wage and hour claims because the employees failed to follow the court’s order compelling the employees to arbitration.

Specifically, on July 8, 2015, a federal judge dismissed (PDF) the original wage and hour collective action that ultimately led to the NLRB’s decision in Murphy Oil where it held that arbitration agreements containing joint, class and collective action waivers in all forums, judicial and arbitral, are unlawful under the National Labor Relations Act.

The four Murphy Oil USA Inc. employees who had originally filed the collective action alleging overtime violations were ordered to arbitration by U.S. District Judge C. Lynwood Smith Jr. of the Northern District of Alabama in 2012.  However, rather than proceed to arbitration as the Court ordered, the plaintiffs waited while one of the four pursued the action before the NLRB.  The plaintiffs undoubtedly were hoping that they would be able to avoid arbitration and proceed with their overtime claim in federal court based on the NLRB’s holding in Murphy Oil.

In February 2015, the plaintiffs filed a motion requesting Judge Smith to reconsider his decision compelling arbitration in light of the NLRB’s October 2014 ruling in Murphy Oil.  Judge Smith not only denied the plaintiffs’ motion for reconsideration, but he also dismissed the action altogether, leaving the plaintiffs without even the option to arbitrate their claims.

Judge Smith found the plaintiffs had willfully ignored and delayed in following the court’s order and that they had done so “for the purpose of gaining a strategic advantage” in the NLRB action.  The Judge found the plaintiffs’ argument that they would have been unable to pursue their case before the NLRB if they had proceeded to arbitration as ordered to be disingenuous.  Judge Smith noted that instead of appealing his order or requesting a stay of arbitration, the plaintiffs engaged “simply disregarded this court’s order because it required them to do something they did not want to do.”

Judge Smith stated that the plaintiffs had:

not cited any authority to support their outlandish suggestion that a federal court order is without effect if there is a related proceeding pending before the NLRB.

While not likely to dislodge the NLRB from its position and apparent collision with the Supreme Court, it is interesting that the NLRB’s position is seemingly now also putting employees, as well as employers, in situation where they face untenuous choices.   Employees now may be faced with the choice of resolving claims through their signed arbitration agreements that they have agreed to with their employers or pursuing the NLRB’s anti-arbitration position at the risk of a court throwing out their claims and losing any chance for relief on their claims.

As discussed in our previous post, the NLRB’s divergent position has already forced employers to carefully navigate between maintaining and enforcing their otherwise valid arbitration agreements and the NLRB’s aggressive condemnation of those agreements.  This District Court’s decision clearly gives employers even more to think about in deciding how to proceed given the conflicting guidance of the Courts and the NLRB.

D.C. Circuit Reverses NLRB License for Union’s Trespass: Employer’s Good-Faith Request that Police Redress Union Trespass Protected by the First Amendment

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CASINOOn July 10, in Venetian Casino Resort, LLC v. N.L.R.B., the D.C. Circuit Court of Appeals ruled that a resort and casino operator’s call to the Las Vegas Police Department, asking it to take action in response union demonstrators trespass on its private property, was protected by the First Amendment and did not violate the National Labor Relations Act (“Act”). The Court’s decision vacated a decision by the National Labor Relations Board (“NLRB” or “Board”), in which the Board found that the act of calling the police in those circumstances unlawfully interfered with employees’ rights under the Act.

Court Reject’s NLRB’s Narrow Reading of the First Amendment

The events leading to this appellate decision happened 16 years ago, in 1999, during a demonstration that was part of a union campaign to organize workers at the then recently opened, Venetian Casino Resort in Las Vegas.  When more than 1,000 demonstrators set up shop on the Venetian’s property, they were asked to leave. Only after the demonstrators refused to heed the trespassing notice did the resort ask the police to intervene. In response, the union filed unfair labor practice (“ULP”) charges with the NLRB alleging that the company had interfered with the demonstration and employees’ rights in violation of Section 8(a)(1) of the Act.

The employer argued that its actions did not violate the Act, and were in fact protected by the petition clause of the First Amendment of the Constitution, which protects “the right of the people… to petition the Government for a redress of grievances”  and the Noerr-Pennington doctrine interpreting the petition clause.  The Board, which did not issue a decision until 2011, rejected the employer’s argument, holding that Noerr-Pennington only applied to “petitions [for redress] that seek the passage of a law or rule, or a significant policy decision.” In other words, in the Board’s opinion, only formal, substantive petitions were worthy of protection under the First Amendment.

Fortunately for employers and property owners, however, the D.C. Circuit Court of Appeals rejected the Board’s narrow reading of the First Amendment and Noerr-Pennington, holding that the company’s “request that the police officers at the demonstration issue criminal citations to the demonstrators and block them from the walkway” fit “squarely within the traditional mold of a [protected] petition to government.” In adopting the reasoning previously relied upon by the Ninth Circuit Court of Appeals in Forro Precision Inc. v. IBM Corp., 673 F.2d 1045 (9th Cir. 1982), the D.C. Circuit noted that these types of petitions must be protected because they help ensure “the free flow of information to the police.”

Remand to the NLRB for Further Consideration

Notwithstanding this meaningful victory, the Court’s decision does not provide final resolution of the ULP charges. Specifically, the Court remanded the case to the Board with direction that it consider a question not previously addressed: whether the Venetian’s request for police intervention was a sham. If the Board determines that the petition was a sham, i.e., that it was “objectively baseless,” then the request for police intervention would not be entitled to the protection of the First Amendment under the Noerr-Pennington doctrine. Given the Board’s penchant for looking at employers’ actions and motivations with a good deal of doubt, it is reasonable to anticipate that the Board will take a close look at the matter for any grounds to discredit the request for police intervention.

The Conflict Between Employer’s Property Rights and Employees’ Section 7 Rights

While the Court’s holding offers some encouragement and relief to employers seeking to protect their property and respond to interference with business and operations, unfortunately, it appears likely that the Board will continue its expansion of the ability for unions to engage in organizing, demonstrations and related activities on private property and for employees to use employer property in the exercise of their Section 7 rights. As the Board demonstrated in its decision this past December in Purple Communications – which reversed the Board’s earlier Register Guard decision and provided employees new rights to use employer’s email systems for organizing and other concerted activities – when it comes to “balancing” employers’ property rights and the rights of employees under the Act, the current Board often finds that the Boards before it gave too much weight to the rights of property owners, generally at the expense of the rights of employees and the unions that represent or seek to represent them.

In fact, since at least 2010, the Board has signaled its intent to rebalance the rights of employers/property owners and organizing rights more in favor of employees and unions. In 2010, in Roundy’s Inc. (PDF), a case with questions concerning when and whether nonemployee union organizers have the right to come on employer property and whether those rights should be expanded, the Board invited interested parties to submit amicus briefs indicating that it was reexamining issues concerning union rights to demonstrate and organize on private property in light of the Board’s Register Guard decision. While the Board has not issued a decision in Roundy’s (although the case has been fully briefed for 4 ½ years, as noted above), Register Guard and its reasoning was rejected by the Board majority when they decided Purple Communications.

What Does All of This Mean for Employers?casino2

The Venetian decision has significant implications for employers who have, for years now, dealt with a Board that is intent on rebalancing parties’ rights. If nothing else, the ruling should provide some solace to employers who are faced with the need to protect their property. Even still, the decision is not a cure all and employers must be careful not to read the holding too broadly. Indeed, the Court was quick to point out that the decision does not protect employers who petition for redress of a grievance involving a matter in which they have no judicially cognizable interest.

Thus, the ruling does not conflict with Sure-Tan, 467 U.S. 886 (1984), where an employer violated the Act when it reported its employees (who were engaged in union activity) to the then Immigration and Naturalization Service. The important point of distinction to keep in mind is that the employer in Sure-Tan “did not invoke the INS administrative process in order to seek the redress of any wrongs committed against them” while in this case, the Venetian sought to protect its private property rights against trespassing demonstrators.

Additionally, employers are cautioned that even though the DC Circuit has provided the Venetian with a victory, as repeatedly demonstrated in its adherence to the D.R. Horton/Murphy Oil anti-arbitration theories, this Board has exhibited its willingness to continue to advance its position in spite of Circuit Court admonishment.

Finally, with the continued uptick in union organizing activity engendered by the Board’s adoption of the Amended Election Rules that took effect this past spring, it makes sense for employers to review their policies and practices concerning public and other non-employee access to their premises and their protocols for dealing with trespass and attempts to gain access for non-business related purposes.  As the D.C. Circuit’s remand in Venetian Resort suggests, it is important that response plans are objectively based and proactively address the matters of employee and union access in light of the latest guidance not only from the Board, but from the courts as well.

NLRB and ALJ Strike Down Button and Stickers Bans

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Kate B. RhodesLast month, in two separate cases, the National Labor Relations Board (“NLRB” or the “Board”) and an NLRB Administrative Law Judge (“ALJ”) found against employers in cases involving the right of employees to wear union insignia at work. While the Board has long held that wearing union t-shirts, stickers and the like is a form of concerted protected activity protected by Section 7 of the National Labor Relations Act (“Act” or “NLRA”), it has historically recognized the right of employers to limit this when necessary to maintain an appropriate atmosphere, these decisions evidence a significant limitation on employers rights in these cases. However, as we have been reporting, Board and its General Counsel have been reexamining numerous precedents and finding that policies and practices deemed lawful interfere with employees’ rights under the Act.

In the first case, Pacific Bell Telephone Company, Nevada Telephone Company d/b/a AT&T, 362 NLRB No. 105 (2015), the Board found that the employer could not lawfully prohibit employees from wearing union buttons and stickers that contained what it argued was  vulgar language, including “WTF, Where’s The Fairness,” “FTW Fight To Win,” and “CUT the CRAP!  Not My Healthcare.”  These slogans were worn by employees who regularly interacted with customers.  The employer argued that because these buttons and stickers contained vulgar language and were offensive, they could not be worn in customer contact areas. The Board disagreed.  The Board wrote:

We agree with the judge that the content of the “WTF,” “FTW,” and “Cut the Crap!” buttons and stickers was not so vulgar and offensive as to cause employees wearing them to lose the protection of the [National Labor Relations Act].  In particular, we emphasize that the “WTF” and “FTW” buttons and stickers provided a nonprofane, nonoffensive interpretation on their face.

The Board also noted that the “possible suggestion of profanity, or ‘double entendre,’” of the slogans was not sufficient to render them unprotected.

Similarly, in Wal-Mart Stores, Inc., Case No. 13-CA-114222 (June 9, 2015), an NLRB ALJ found that the following dress code policy, which prohibited a broad range of logos and messages, not only those referring to union insignia, was unlawful:

Walmart logos of any size are permitted.  Other small, non-distracting logos or graphics on shirts, pants, skirts, hats, jackets or coats are also permitted.

The employer later added a qualifier about the size of logos, defining “small” as “no larger than the size of your associate name badge.”  The ALJ found that this policy was overly broad and vague, and that the rule was not sufficiently “narrowly tailored” to justify the maintenance of the rule.  First, the ALJ noted that the policy does not define the term “non-distracting,” which could lead to confusion on the part of associates.  Second, the ALJ stated that the employer’s limitation on logos, which included union insignias, was not justified by any of the special circumstances (i.e. employee safety, damage to machinery or products, exacerbation of employees dissension, or unreasonable interference with the public image of the employer) that Board precedent has held can lawfully justify such a prohibition.  The ALJ stated:

Walmart did not present any evidence of a significant or widespread problem with associates wearing union insignia or other logos that actually made it difficult or impossible for others to see their Walmart nametags. . .Nor did Walmart present evidence of a significant or widespread problem with customers being distracted by logos worn by associates.

The ALJ wrote, in conclusion, that the employer’s rule ran “afoul” of prior cases that “upheld that right of employees to wear union insignia of a variety of types and sizes, including insignia much larger than Walmart’s nametags.”

Both of these cases further evidence with Board’s efforts to be relevant to union and non-union employers alike, which is often done through cases challenging the legality of a work rule, regardless of whether it has ever been enforced.  Employers should continue to be careful when drafting and enforcing policies, specifically those regarding employee dress codes.

NLRB Signals It Is About to Make It Much Easier For Unions to Organize Temps and Contingent Workers – Temps and Regular Employees To Be Included in Same Bargaining Unit

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Steven M. Swirsky

The National Labor Relations Board (NLRB or Board) invited interested parties to submit amicus briefs in Miller & Anderson, Inc. in connection with the Board’s reexamination of critical issues affecting the ability of unions to organize employees employed by temporary and staffing agencies (“temporary employees”) in the same bargaining units as employees of an employer that supplements its direct workforce with temporary employees.

Elections Involving Joint-Employers

Under the existing law, the Board will only conduct an election and certify a unit that includes employees of joint employers if both of the joint employers agree to such an arrangement.  The Board’s grant of the petitioning union’s request for review of a regional director’s dismissal of petition for an election because one of the joint employers did not agree, appears to telegraph the Board’s intention to abandon that requirement.

Easing the Test for Finding a Joint-Employer Relationship

The NLRB has previously suggested when it invited amicus briefs in imminently in Browning-Ferris that it is about to adopt a new test, based on what it calls “economic realities,” for deciding whether a business is a joint employer with another entity such as a temporary agency or employee leasing service, of the personnel that the agency supplies to work for its client.

More Elections and Unions Representing Temps

If it does so, and then decides in Miller & Associates to create an easier pathway for temporary employees, part-time employees and other contingent workers” to obtain union representation, and be included in bargaining units alongside “regular employees” employed by the principal employer, could radically change the landscape and lead to organizing and bargaining over terms and conditions for temporaries and other contingent workers.  The bargaining obligation would apply not only to the staffing agency that writes a temporary worker’s paycheck, but also to the temporary agency’s client for whom the temporary worker does work.

Under the Board’s 2014 decision in Oakwood Care Center a bargaining unit composed of both “solely employed employees” and jointly-employed employees would only be found to be an appropriate unit for bargaining and the Board would only direct an election in a unit of jointly and solely employed employees if both of the employers (i.e. the principal employer and the temporary or staffing agency supplying personnel to work with the principal employer’s employees) consented to such an arrangement.  Not surprisingly, few, if any, employers agreed to this.

Why Is the Board Doing This Now?

What the Board has indicated in its July 6, 2015 Notice and Invitation to File Briefs is that it is, at a minimum, looking at abandoning the requirement of consent of both employers and returning to the legal standards that preceded Oakwood, which standard was adopted by the Board in 2000, during the Clinton Administration in M.B. Sturgis which had permitted the Board to direct an election in a unit included both solely employed and jointly employed employees without the need for the consent of the two employers.

The fact that the Board has now, after three years, granted the union’s 2012 request for review of a Regional Director’s decision in Miller & Anderson stating that the union’s appeal of the dismissal of its election petition  “raises substantial issues warranting review with respect to the applicability of Oakwood Care Center,” strongly suggests that the Board intends to eliminate the requirement that when a union seeks an election in a unit including  employees the Board finds to be employed by joint-employers, that both employers must consent for an election to take place.

What To Expect

Given the expectation that the Board will shortly announce a much relaxed standard for finding employers to be joint-employers, this is not surprising.  However, what it also likely presages is a continuation of the union campaigns, such as those in the realm of franchisor-franchisee relationships in fast food and elsewhere and the Board’s movement towards more findings of joint employer status.

Is No Class Action Waiver Safe? NLRB Judge Finds AT&T’s Non-Mandatory Arbitration Agreement with Non-Union Employees Unlawful

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Even further expanding the National Labor Relations Board’s (“NLRB”) holdings in D.R. Horton and Murphy Oil limiting employer requirements concerning class action waivers, on June 26, 2015, an NLRB administrative law judge (“ALJ”) ruled that even a non-mandatory arbitration agreement that is voluntarily entered into by employees is unlawful if it requires employees to waive joint, class or collective actions in all forums, judicial and arbitral.

In November 2011, AT&T Mobility Services (“AT&T”) sent via email a Management Arbitration Agreement (“Agreement”) to 24,000 of its employees who were not represented by unions that included a class and collective action waiver.  The email made clear employees had the right to opt-out of the Agreement and provided employees instructions on how to do so electronically.

The email’s subject line read: “Action Required: Notice Regarding Arbitration Agreement.”  Once the Agreement was electronically opened, the page linked to a button marked “Review Completed,” which when clicked, indicated that an employee had reviewed it.  Employees who did not click on the button were sent additional emails until they reviewed and acknowledged the Agreement.

The emails provided each employee with a deadline of February 6, 2012 by which to choose to opt-out of the Agreement and explained that opting out meant the employee was declining “to participate in the arbitration process.”  The messages also included assurances that no adverse action would be taken against employees who choose to opt out, provided employees with a hotline number to call should they have any questions and explicitly stated that all employees could still bring claims before administrative agencies.

In June 2013, three employees filed a wage and hour class action in federal district court.  AT&T convinced the plaintiffs’ attorney that two of three employees had failed to opt-out of the Agreement and thus were bound to arbitrate their claims on an individual basis.  AT&T argued that employees who had not opted out were bound by the Agreement and had waived their right to participate in the class action.

The class action continued in federal court, and the federal district court judge found that only those 175 employees who had opted-out of the Agreement were eligible to participate in the class (and only 20 actually opted to participate).

The two initial plaintiffs who had not opted out of the Agreement proceeded to arbitration with their claims and eventually sought new counsel.  Their new attorney filed an unfair labor practice (“ULP”) charge with the NLRB on their behalf, arguing that the Agreement violated their rights under the National Labor Relations Act (“NLRA”) by interfering with their right to participate in a class action, a form of concerted activity.  The Board’s Regional Director agreed, issued a Complaint, and the matter proceeded to a hearing before an ALJ.

While the NLRB ALJ conceded that the Agreement “initially was not mandatory” due to the opt-out option, she took issue with what she concluded was an absence of evidence that employees were actually appraised “in layman’s terms, of the ‘real-life’ consequences of the choice they were being asked to make.”  On that basis, the ALJ reasoned that once an employee failed to opt-out, there was “no opportunity for an employee to reconsider his or her decision.”

The ALJ held that an employer may not require employees to enter into arbitration and class action waiver agreements—even where the employee voluntarily elects not to opt out—if the agreement includes an irrevocable waiver of the employee’s future rights protected by the NLRA, such as the right to participate in joint, class or collective actions.

As a remedy, the ALJ ordered AT&T to rescind the Agreement, or to revise it to make clear that employees are not required to waive their right to pursue joint, class or collective actions in all forums, arbitral or judicial.

While the ALJ had no problem stating that she was bound by NLRB precedent and the holdings of D.R. Horton and Murphy Oil, she failed to mention that Section 7 of the NLRA also affords employees the right to refrain from—and thus opt out of—collective action.  Specifically, while the current Board, and the ALJ here, have conjured a prohibition on class action waivers out the clause of Section 7 which states that employees “shall have the right to…engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection…,” each has ignored Section 7’s equally important counterpart which provides that employees “shall also have the right to refrain from any or all such activities….”

Despite the fact that every U.S. Court of Appeals that has been asked to review D.R. Horton and Murphy Oil has outright rejected the NLRB’s extreme holdings concerning class and collective action waivers in arbitration agreements, the Board pushes forward undeterred and continues to adhere to, and ALJ’s continue to follow, the Board’s rationale and holdings articulated in those cases.

The unanimity and absence of any split among the Courts of Appeal makes it all the more likely that the U.S. Supreme Court will eventually address the NLRB’s very aggressive anti-arbitration agreement position.  Considering that the NLRB’s view directly conflicts with the Supreme Court’s prior rulings regarding class action waivers in arbitration agreements, it will be interesting to see how the NLRB’s position holds up if and when it ultimately comes under Supreme Court scrutiny.

In the meantime, the area has become increasingly difficult for employers to navigate.  Any employer that wishes to adopt an arbitration agreement with its individual employees that provides for some kind of joint, collective, or class action waiver should contact experienced labor counsel to determine the best course of action for the particular employer.

Salon Writers and Editorial Staff Demand Representation by The News Guild – Union Organizing in Electronic Media Continues to Grow

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In the footsteps of last month’s union election at Gawker, an electronic news site, it has now been reported that all 26 of the writers and editors of San Francisco-based at Salon, another on line news organization, have served the publication with a letter announcing that each of them has designated the News Guild, which until April of this year was known as the Newspaper Guild,  as their collective bargaining representative.

Lowell Peterson the union’s Executive Director commented that the unionization campaigns at Salon and Gawker and a part of the Guild’s broader efforts to represent electronic and new media employees.  The union’s letter to Salon request for recognition explained the employee’s reasons for seeking union representation.  He wrote that while the writers and editors are “pleased to be working for Salon.com,” their goals are the traditional ones – a desire to improve wages, benefits and other working conditions and a desire for a “voice on the job.” He continued that “I don’t think it’s just one specific issue,” but that “they do understand the value of having a collective voice and they do have concerns.”

Indeed, at the time of the Gawker election in June, Guild President Bernie Lunzer, in an extensive interview with the Washington Post referred to the Gawker vote as a “harbinger” of things to come.  Ironically, several months earlier, the Washington Post had published a lengthy article entitled Why Internet Journalists Don’t Organize  that opined on what were seen then as the many reasons that employees in electronic media and related areas were not interested in union representation and could not be successfully organized.  Ironically that article, which focused on the efforts of a staunch union advocate who had been hired at Politico.com and was then trying to organize his co-workers from within, quite possibly as a “salt” who took the job with that goal in mind, made clear that this industry had been targeted and that the Guild was working to adapt its message and strategies to appeal to a new generation of workers who have positive attitudes towards unions and their messages.

While Salon’s leadership has not yet publicly indicated whether they will agree to recognize the Guild based on its petition signed by its workforce, will seek an election, either a private election such as Gawker and the Guild agreed upon or one conducted by the National Labor Relations Board, these developments are further reminder that unions are not “dead” and that in fact many are becoming much more adapt at focusing their messages and techniques to appeal to a new generation of workers and the methods of communicating and organizing sub rosa and out of the view of employers.

Coupled with the labor movement’s interest and efforts to pursue employees in high technology and related fields employers would be well served to assess their organizations and their vulnerability to these new age organizing efforts.

NLRB Reverses Longstanding Rule: Employers Now Required to Disclose Confidential Witness Statements in Investigations – a Major Change for Labor Arbitration?

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The National Labor Relations Board (“NLRB” or “Board”), in its June 26, 2015, Decision and Order in American Baptist Homes of the West d/b/a Piedmont Gardens (PDF) has overruled what it described as a longstanding “blanket exemption” allowing employers to protect the confidentiality of witness statements taken during investigations and not provide them to a union in response to an information request. In place of the long standing body of law protecting the confidentiality of witness statements, which was established in recognition of the needs for confidentiality in investigations, the Board has now replaced the rule with a balancing test that weighs the employer’s need to protect confidential information with the union’s stated need for the statements to process a grievance or carry out its other responsibilities.

While the Board majority of Chairman Pearce and Members Hirozawa and McFerran opined that the application of the new test does not necessarily mean that a union will be entitled to receive copies of witness statements taken by an employer in all cases where it requests them, it certainly appears, from reading the majority’s opinion and the  burdens that an employer must meet to establish that a witness statement is entitled to protection from disclosure as confidential, that the burden will be an extreme one and that the Board will look with suspicion when an employer raises the defense.

In 1978, in Anheuser-Busch (PDF) the Board held that the general duty to furnish information “does not encompass the duty to furnish witness statements themselves.” Thus, for the past 37 years employers could assure employees who gave statements during an investigation that the statements would not be turned over to the union.  However, in overruling Anheuser-Busch, the Board  majority concludes that “the rationale of Anheuser-Busch was flawed” and, therefore, in their view, “national labor policy will be best served by overruling that decision and instead, evaluating the confidentiality of witness statements under the balancing test set forth in Detroit Edison, a case that involved the standard for determining when and in what circumstances an employer was obligated to produce information that it claimed was confidential, in response to a request for information in collective bargaining.

In crafting a standard for applying Detroit Edison to requests for confidential witness statements, the Board majority noted that the Board “applies a liberal test to determine whether information is relevant: the issue is whether the requested information is of ‘probable’ or ‘potential relevance.’” Such information, to be relevant under this low standard, “need not be dispositive of the issue between the parties but must merely have some bearing on it.” Under Detroit Edison and now Piedmont Gardens, if a party asserts that the requested information is confidential or the statement contains confidential information, “the Board balances the union’s need for the relevant information against any ‘legitimate and substantial confidentiality interests’ established by the employer.”

The challenge for employers in considering whether they may lawfully refuse to provide witness statements or for that matter other information containing what they believe to be confidential information entitled to legal protection as such, is that they Board puts them on notice that there is not a clear and readily identifiable standard for determining what information is entitled to such protection.  As the Board points out in Piermont Gardens, “establishing a legitimate and substantial confidentiality interest requires more than a generalized desire to protect the integrity of employment investigations.”  Rather, only if the employer can establish to the Board’s satisfaction, on a case by case basis that a witness whose statement the union is demanding “needs protection, evidence is in danger of being fabricated, [or] there is a need to prevent a cover up,” will the Board find that the employer may lawfully refuse to provide the union with the witness statements. Even where the employer can meet this substantial burden the Board points out that the employer must then “seek an accommodation that would allow the requester to obtain the information that it needs while protecting the party’s interest in confidentiality.”

One  result of the Board’s about face on the confidentiality of witness statements is likely to be a substantial increase in union requests for copies of investigative statements taken by employers when grievances are filed and processed. Another is a likely increase in the filing and litigation of unfair labor practice charges that focus on whether an employer really requires and is entitled to confidentiality, rather than the merits of the grievance.

A third and perhaps most important consequence of this decision is that many employers and attorneys are likely to reassess when and in what circumstances it is advisable to take witness statements and when, given the increased pressure to produce such statements to unions.

NLRB Dramatically Educates Private School on Meaning of Concerted Protected Activity

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While we have been reminding readers of the fact that  the National Labor Relations Act (the “Act”) protects employees regardless of whether they are represented by a union and the Act applies to non-unionized workforces, too, recently  a National Labor Relations Board (the “NLRB”) Administrative Law Judge issued a decision following an unfair labor practice (“ULP”)  hearing based on a charge filed by a teacher at New York City’s prestigious Dalton School that should serve as an object lesson for employers in all non-union businesses.

The case, Dalton School, Inc., involved a series of emails concerning a school musical. The case arises out of a doomed production of a middle school rendition of Thoroughly Modern Millie. The Charging Party, David Brune, was one of five teachers in the theater department at the Manhattan private school. In late 2013, the theater department starting putting together the Millie production, including assigning roles, rehearsing lines and songs and preparing sets and costumes. In early January 2014, just weeks before opening night, complaints regarding Asian ethnic stereotypes in the play by parents and faculty were received by the school’s administration.  . The school ordered Brune to discontinue all work on the production two weeks prior to the opening; and eventually, certain offending parts of the play were re-written. Brune only learned that the revamped production would open on schedule three days prior to the opening. Despite the short notice, and with a lot of work in that short period, the production was successful.

Afterwards, Brune shared his views with how the school’s administration handled the concerns and the changes in the play with the other faculty members in the school’s theater department. Through a series of drafted letters to school management, and e-mails within the department, Brune and the others spoke of the redress they felt they should receive for the mishaps with Millie and their views as to how to avoid a repeat in the future. In one of these emails, Brune accused school management of lying to the theater department.

A month after he sent the emails, Brune was called into a meeting with the school management, where they debriefed on the Millie situation. The head of the school asked Brune if he ever said anything negative about the school administration, such as accusing it of lying. He denied saying anything negative. On April 17, 2014, Brune was again summoned to a meeting with School management, but this time, he was presented with a copy of an email he had sent to other teachers during February, in which he wrote that  that management had lied to the theater department and the students. At this meeting, Brune was told his contract would not be renewed for the next year and that he could leave immediately or finish out the school year.

Rather than going quietly into the good night, Brune filed a ULP charge with the New York regional office of the NLRB claiming that he had been terminated for engaging in protected concerted activity, that is his communications with his fellow teachers. Following an investigation, the Board’s Regional Director issued a complaint and the matter was tried before ALJ Arthur J. Amchan.

In defending against the claims, Dalton denied that the decision not to renew Brune’s contract for the following year was not related to any concerted, protected activity.  Rather, the school asserted that the decision not to renew Brune’s contract was based on the fact that he had been dishonest in the March meeting when asked whether he ever stated that School management lied about the Millie production.

The ALJ found otherwise, and concluded that Dalton rescinded his employment contract because he had engaged in protected, concerted activity when he communicated with his fellow teachers about how the school’s administration had handled the matters. Specifically, the ALJ concluded that the e-mails between the theater department members discussing how to address concerns about the Millie production with school management were concerted protected activity. The Judge reasoned that since the e-mails clearly identified each employee who was involved in the e-mail chain, Dalton was aware that there was more than one employee involved in the communications, putting it on notice that the activities were concerted. The ALJ further found that the school’s actions in the March meeting violated the Act because they were designed to “trap” or catch Brune in a lie about the February e-mail.

This case is a vivid illustration of how employee actions about a wide range of work related matters, including in non-unionized workplaces, can rise to the level of protected activity, even if the actions are as simple as the exchange of emails among co-workers.

Gawker, “New Media,” and Labor Unions—More Insights

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Last week we reported on the June 3rd vote by Gawker media’s employees for union representation and speculated what it meant in the broader context of union organizing among Millennials.

Today, Rachel L. Swarns of the New York Times provided some insight based on interviews and reporting with Gawker workers.

The article notes a recent study by the Pew Research Center finding that those in the 18-29 age group view unions more favorably than those in other age groups, with almost twice as many having a favorable view of unions than those who don’t.

Swarns also points out the issues that organizers from the Writers Guild concentrated on during the organizing drive: severance, set minimum salaries for every job, annual meetings with supervisors to discuss performance, salaries and promotions, and contractual restrictions on the company’s ability to make changes to medical coverage without the union’s agreement.

As the article concludes, while both sides may have treated the union drive in a less adversarial manner than is typical, negotiations for a contract will be the hard part.  That comes next.

Gawker Media Employees Vote For Union Representation – What Does This Mean?

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On June 3, 2015 editorial employees at Gawker Media (“Gawker”) voted to be represented by the Writers Guild of America, East (“the Union”).  In this Newspaper%20and%20keyboard%2025536850_jpgclosely watched organizing drive, employees of a leading “new media” outlet, chose an old line print journalism union to bargain with their employer, becoming one of the first (if not the first) digital media outlets to unionize.  This follows on the heels of increased union organizing and pressure in the technology field and organized labor’s Silicon Valley Rising campaign. Interestingly, the election was not conducted by the NLRB but through VoteNet, which Gawker’s own reporting described as “an independent online voting system.”

Gawker officially remained neutral during the campaign, and permitted its editorial staff to publish internal discussions regarding unionization on the company’s consumer facing website. Hamilton Nolan, the writer who spearheaded the organizing drive published an article titled Why We’ve Decided to Organize in which he argued “every workplace could use a union.” After the date of the election was announced, Gawker created a page for employees to discuss the upcoming election. Of the 118 writers eligible to vote, 75 voted in favor of representation and 27 voted against.

The public online discussion among the employees preceding the vote offers interesting insights into union organizing activity in the new media industry. It appears that the primary arguments by those supporting representation was not to push for an immediate improvements in salary and benefits. Rather, union supporters argued that representation would help them preserve and maintain their existing compensation in the event of future downturns. Others expressed the view that pay practices would become more transparent with a union. Opponents argued that the status quo was satisfactory and that bringing an old line union like the Writers Guild into the company would hurt the company’s culture. Opponents also complained of a hurried election process where their concerns were marginalized or shouted down.

In an interview on CNBC’s Squawk Alley following the vote, Gawker Founder and CEO, Nick Denton said that the writers “…have made it clear both to the management and to the union that they like the way they work and none of that is going to change,” echoing his prior sentiments that he was “pleased Gawker is leading the movement in the online media world toward collaboration and inclusion.” Only time will tell as to how the introduction of the Union will impact the Gawker workplace both on a short and long term basis.

Key takeaways for employers:

  • The technology, media and telecommunications industry remains an important target for organized labor.  Indeed, while perhaps counterintuitive, the new crowd of hip, highly educated innovators and creative-types may prove to be fertile ground for more traditional organizing efforts
  • Even highly skilled and well compensated workers can be vulnerable to union organizing. Employers’ efforts to maintain non-union status should be carefully tailored to address employee concerns and unique circumstances on a case by case basis.
  • Employer educational efforts remain a critical tool for helping to educate employees about the downsides of representation.