On June 7, 2017, in RHCG Safety Corp. and Construction & General Building Laborers, Local 79, LIUNA, the National Labor Relations Board (“NLRB” or the “Board”) rejected an employer’s contention that “a text message cannot be found to constitute an unlawful interrogation” and found that a coercive text message, just like a coercive face-to-face meeting or a coercive phone call, could serve as evidence that the employer had unlawfully threatened or interrogated employees concerning their union support or activity in violation of the National Labor Relations Act (“NLRA” or the “Act”),  and thus could support a finding that the employer committed an unfair labor practice (“ULP”).  The Board noted that the employer had offered “no reason why the Board should provide a safe harbor for coercive employer messages via text messages.”

The Act’s Protection of Employee Activity

The Act provides all employees with the right to engage or refrain from engaging in protected, concerted activity, that is activity concerning their terms and conditions of employment, including but not limited to the right to join and be represented by unions and to engage in collective bargaining with their employers. It is well established that these rights, which are provided for in Section 7 of the Act, protect and apply to employees in both unionized and non-union settings.  The Act prohibits both employers and unions from engaging in conduct that interferes with employees in their exercise of their Section 7 rights.  Under Section 8(a)(1) of the Act, it is an ULP for an employer or its agents to restrain or coerce employees in the exercise of their Section 7 rights.  For example, it is unlawful for an employer to interrogate an employee about his or her support for a union or that of other employees.  It is a violation of Section 8(a)(3) of the Act for an employer to terminate, discipline or otherwise take action against an employee because of his or her exercise of Section 7 rights.

The case in question arose in the context of a union organizing campaign by Laborers Union Local 79 among employees of RHCG Safety Corp. (also known as Redhook Construction Group). The union had petitioned the NLRB for a representation election, in which employees were to vote on whether they wanted Local 79 to become their bargaining representative. During the campaign, an employee texted his supervisor, to inquire about returning to work after an approved leave of absence. The supervisor replied by text, “U working for Redhook or u working in the union?” According to the unanimous Board decision, in which Chairman Miscimarra joined with Members Pearce and McFerran, an employee would understand the supervisor’s message to strongly suggest that working for Redhook was incompatible with supporting or working in the union.  The Board therefore agreed with the Administrative Law Judge (“ALJ”) who had conducted the ULP hearing, that the text message constituted an unlawful interrogation and violated Section 8(a)(1) of the Act.

In its exceptions to the ALJ’s decision Redhook argued to the Board that a text message could not constitute an unlawful interrogation, but according to the Board’s decision, Redhook failed to offer any reason to support its position that a text message could not support a finding of an unlawful interrogation.  The Board rejected Redhook’s contention, finding “an unlawful interrogation need not be face-to-face.”   The Board also rejected the argument that the text message at issue was inadmissible at the ULP hearing because the screenshot of the text offered by Counsel for the General Counsel did not include the entire communication between the employee and his supervisor.  The Board reasoned that the Federal Rules of Evidence permit introduction of only a part of a writing, and there was nothing in the record to suggest the text message at issue was incomplete or that the “missing” text messages could have negated the coercive nature of the “are-you-for-the union” inquiry.

What Should Employers Do Now?

The Board’s decision highlights the need for employers to carefully consider how to communicate with employees in the ordinary course of business and during an organizing campaign. Given the issues workplace texting presents for employers, it is advisable for employers to review their communication policies to make clear what methods of communication are allowed in the workplace.  Employers should also review their record retention policies to make sure that all permissible mediums of communication are covered by the policy.  Texting is a casual form of communication. To the extent employers permit text messaging among employees, it may also be necessary for employers to remind employees that text messages are workplace conversations, and the dos and don’ts applicable to face-to-face meetings and telephone calls apply equally to text messages.  Employers should also pay even greater attention to all forms of communications, both formal and informal, and by the company as well as by supervisors and managers whose actions and statements can be attributed to the employer, in the presence of organizing or other union activity.

Featured on Employment Law This Week:  An employee’s Facebook rant was protected activity, says the Second Circuit.

In the midst of a tense union campaign, a catering company employee posted a profanity-laced message on Facebook. The post insulted his supervisor and encouraged colleagues to vote for unionization. The employee was subsequently fired. Upholding an NLRB ruling, a panel for the Second Circuit found that the post was protected under the NLRA and the employee should not have been terminated. The Court noted that Facebook is a modern tool used for organizing. Our colleague Ian Carleton Schaefer is interviewed.

Watch the segment below and read our recent post about the ruling.

In NLRB v. Pier Sixty, LLC, the Second Circuit held that an employee’s expletive-laden Facebook post – which hurled vulgar attacks at his manager, his manager’s mother and his family – did not result in the employee losing the protection of the National Labor Relations Act (“Act”).  But even though the Second Circuit conferred protected status on this unquestionably obscene post, it did not create a protected right to level profane verbal assaults on management when discussing union business.  Such conduct has been, and will continue to be, unprotected in most circumstances.  Nevertheless, this case acts as an important reminder for employers:  if they choose to allow vulgar conduct in the workplace when it does not pertain to union activity, they must also allow it when it does.

A Pier Sixty Employee Posted an Obscene, Pro-Union Facebook Message in Response to Management’s Alleged Disrespect

Pier Sixty operates a catering company in New York, New York. In 2011, its employees embarked on a tense organizing campaign during which management allegedly threatened employees with discipline for union activity, disparately enforced a no-talk rule and told employees “bargaining would start from scratch” if they voted to unionize.  Two days before the election, Hernan Perez, a server employed by Pier Sixty, posted a vulgar Facebook message after his supervisor gave him instructions in a tone that Perez perceived to be disrespectful.  That post read:

Bob is such a NASTY [expletive] don’t know how to talk to people!!!  [Expletive] his mother and his entire [expletive] family!!!!  What a LOSER!!!  Vote YES for the UNION.

The Facebook post was accessible by Perez’s Facebook friends, which included 10 coworkers, and by the public, although Perez insisted he did not know that at the time. Perez deleted the post three days later, but Pier Sixty management had already learned about it and, after conducting an investigation, terminated Perez.

Perez’s Facebook Post Constituted Protected Activity Because Pier Sixty Routinely Tolerated Similarly Profane Outbursts from Employees

The Second Circuit ultimately concluded that Perez’s Facebook post constituted protected activity because Pier Sixty routinely permitted vulgarities in the workplace. Notwithstanding the profane language, Perez’s post “explicitly protested” management’s mistreatment and “exhorted employees to ‘Vote YES,’” while Pier Sixty’s anti-union animus was uncontested.  Given these circumstances, “the Board could reasonably determine that Perez’s outburst was not an idiosyncratic reaction to a manager’s request but part of a tense debate over managerial mistreatment in the period before the representation election.”  Moreover, Pier Sixty consistently tolerated “widespread profanity in the workplace,” and both management and employees used “daily obscenities” without consequence.  In the six years preceding Perez’s termination, there had only been five written warnings issued for such language and no terminations – until Perez. The Second Circuit noted that “it is striking that Perez – who had been a server at Pier Sixty for thirteen years – was fired for profanities two days before the Union election when no employee had ever before been sanctioned (much less fired) for profanity.”

The Second Circuit also found the manner in which Perez communicated his ire to be significant. Social media is a “key medium of communication among coworkers and a tool for organization in modern era,” and, despite publicly posting the message, Perez’s outburst did not occur “in the immediate presence of customers nor did it disrupt the catering event.” Thus, the Court found the post to be distinguishable from other “opprobrious conduct” cases it had considered.

Notably, although the Second Circuit deemed Perez’s post to be protected under the Act, it also cautioned, “this case seems to us to sit at the outer-bounds of protected, union-related comments, and any test for evaluating ‘opprobrious conduct’ must be sufficiently sensitive to employers’ legitimate disciplinary interests.”

Court Questioned the Validity of the Board’s “Totality of the Circumstances” Test

In 2012, the Second Circuit, in NLRB v. Starbucks, 679 F.3d 70 (2012), concluded that the test traditionally employed by the Board to assess whether obscenities uttered in the workplace constitute protected activity – the Atlantic Steel test – did not sufficiently accommodate employers’ legitimate interest in preventing employees’ public outbursts in the presence of customers and remanded the case to the Board to develop “more balanced standards for evaluating ‘opprobrious’ conduct in that context.”  The Office of the General Counsel subsequently issued Memorandum OM 12-59, which set forth a nine-factor “totality of the circumstances” test to assess the protected nature of employees’ social media communications, which the Second Circuit characterized as “more employee-friendly.”  The Board employed this test in Pier Sixty, LLC, but the Second Circuit questioned the test’s legitimacy, stating that “we are not convinced the amorphous ‘totality of the circumstances’ test adequately balances an employer’s interests…”  Ultimately, though, because Pier Sixty did not object to it the Second Circuit applied the test – without sanctioning its validity.

Lessons Learned From Pier Sixty

This case serves as a reminder that employers must take the long view when deciding whether to discipline employees for workplace conduct that is inappropriate but not particularly offensive to the employer. Here, Perez’s posting would have likely fallen outside the bounds of protected activity had Pier Sixty disciplined employees for similar vulgarities in the workplace.  However, because Pier Sixty routinely tolerated such conduct from management and employees alike, the Second Circuit could not find that Perez’s conduct was “so egregious as to exceed the NLRA’s protection.”

This case also signals that the Second Circuit, and perhaps other courts, may be willing to abandon the Board’s “totality of the circumstances” test in favor of a standard that better protects employer’s legitimate interests in regulating employees’ workplace conduct. Employers defending cases in which the Board employs this test should vigorously argue that this standard improperly intrudes upon their legitimate business interests.

A featured story on Employment Law This Week is the NLRB’s crackdown on employers restricting the content of personal emails sent through the employer’s email system.

In 2014, the NLRB ruled that employees who have email through their employers can use that email to communicate about union-related issues. In a recent election at Blommer Chocolate Company, the union claimed that company email rules interfered with the voting process. Employees were allowed to use the company’s email system for personal emails, but were prohibited from expressing personal opinions in their emails to coworkers. The NLRB found that this rule interfered with elections and that a second election should occur. One of the questions that arises from this ruling is the issue of where the line is between what employers can prohibit – harassment, for example – and what they cannot.

View the episode below or read more about the NLRB’s ruling in an earlier blog post.

The recent decision by the National Labor Relations Board (“NLRB” or the “Board”) in Blommer Chocolate Company of California (PDF) addresses one of the issues left open in the wake of the Board’s earlier ruling in Purple Communications, Inc. – namely, the extent to which an employer may regulate the content of its employees’ emails sent over the workplace email system.  In Purple Communications, the Board concluded that an employee who is permitted to use the employer’s email system for non-work purposes is presumptively permitted to use that email system (during non-work time) to communicate with others about union-related issues.  While the Board did preserve an employer’s right to monitor its email system for “legitimate management reasons,” such as ensuring productivity or preventing harassment, it did not expressly define the contours of an employer’s ability to regulate the content of employees’ emails sent over the workplace email system.

In Blommer Chocolate Company of California, the Board addressed this very issue, and concluded that a work rule that allowed employees to use their work computers for personal reasons but prohibited them from expressing any personal opinions in their emails was impermissibly overboard.  The Board further concluded that this objectionable work rule (along with two others) interfered with a representation election, and directed that a second election take place.

Given the somewhat extreme nature of the work rule at issue in Blommer, the Board did not engage in much analysis before finding it overbroad.  Nonetheless, this decision demonstrates the Board’s willingness to review (and potentially invalidate) employers’ attempts to regulate or control the content of emails exchanged over the workplace email system.  It remains to be seen whether the Board will scrutinize an employer’s email usage rules in the same way that it has reviewed corporate social media policies in the last few years.  For example, will a work rule prohibiting an employee from using profanity in emails sent over the workplace email system be found to unlawfully restrict employees’ statutorily protected communication rights?  Indeed, as the Board and Second Circuit have recently made clear, employees’ Facebook and social media activity does not lose its protected status merely because it contains profanity.  Similarly, would work rules that attempt to regulate employees’ tone over email, or instruct employees to remain mindful that their communications reflect on their employer’s image withstand Board scrutiny?

As this area of the law continues to develop, employers should review their existing policies and practices regarding their employees’ use of the workplace email system, and give particular consideration to any policies or practices that restrict, regulate, or otherwise limit the content of employees’ emails.

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.

A couple weeks ago we provided anecdotal reports from several NLRB Regional Directors that after one month the new Ambush Election Rules union elections were being held in considerably less time, with the Regional Directors claiming elections were being scheduled between 25-30 days.  Last week, according to BNA’s Daily Labor Report and Law360, the NLRB released national results of the first month showing that the impact was worse than anticipated.

More Union Petitions Under Ambush Elections Rule

Between April 14 (the day the rules when into effect) and May 14, 280 representation cases were filed.  This was a 17% increase in filings over the same period in 2014 and a 32% increase from the last month under the old rules.  While some of the increase is likely attributable to unions strategically waiting for the new rules to go into effect, employers can certainly expect increased union activities and more petitions.

Election Period Cut by Over 40% – Just 23 Days

Even more troubling than the increase in petitions is the dramatic decrease in time to respond to the petitions.  According to the NLRB’s first month results the median time between the filing of a petition and an election date has been cut down to only 23 days.  This is over 40% less time than the prior median of 38 days and provides employers just over three weeks to respond to the petition and mount a campaign.  Of course one third of this median time would be spent preparing for a hearing and collecting/providing the information now required by the Board.

The additional information, requirements, and restrictions of the new rules may be a reason that almost all of the petitions have resulted in stipulated election agreements where employers agree to forgo a hearing and stipulate to the election issues, including date.  In fact, the NLRB reported that of the 280 petitions only 4 went to a hearing.  That means in an astonishing 98.5% of all petitions the employer forwent their rights to a hearing and agreed to election issues with the union.  This is a considerably higher percentage than the typical 80% or so of petitions that historically have resulted in stipulated election agreements and suggests that employers are either apprehensive about hearings under the new rules and/or being threatened with even shorter election times if they proceed to a hearing.

In the 4 cases where a petition went to a hearing two of the cases resulted in a directed election in 23 days from petition filing, with one election directed in 26 days and the other 30 days.  These election dates are far sooner than the median length of 59 days under the old rules.

It should not be over looked that 23 days is a median time frame and, as noted, where cases went to a hearing, 23 days was the earliest date ordered.  This means that of the 276 petitions which resulted in stipulated election agreements many had elections in less than 23 days.

Again, the official results after the first month seem even worse than expected for employers, as the increasing number of them that are the target of union organizing will have very little time to prepare.

Management Missives

As we have advised, we recommend employers concerned about union organizing prepare now:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing, such as solicitation/distribution, electronic communications, and social media policies.
  • Assess your workforce for potential bargaining unit issues, such as identifying supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors to recognize the early warning signs of union organizing and on how to respond lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance to ensure that you are prepared to respond to an organizing campaign.

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

As explained in the Memorandum, the Board’s legal standard for deciding whether an employer policy unlawfully interferes with employees’ rights under the Act is generally whether “employees would reasonably construe the rules to prohibit Section 7 activity” – that is action of a concerted nature intended to address issues with respect to employees’ terms and conditions of employment. As we have noted previously, this General Counsel and Board have consistently given these terms broad interpretations and have found many employer policies and procedures, in handbooks and elsewhere, that appear neutral and appropriate on their face, to violate the Act and interfere with employee rights.  Many of these cases have involved non-union workplaces where there is not a union present and there is no union activity in progress.

There are two sections to the Memo. Part 1 of the Memorandum, which begins at page 2 and runs to page 20, offers a recap of NLRB decisions concerning 8 broad categories of policies, with summaries of the Board’s holdings and examples of policy language that the NLRB has found to unlawfully interfere with employees’ Section 7 rights and policy language that the Board has found did not unlawfully interfere with employees’ rights.  Section 2 reports on the General Counsel’s settlement with Wendy’s International LLC following an investigation of charges in which the General Counsel found portions of Wendy’s employee handbook unlawfully overbroad, with an explanation as to why the General Counsel found the policies in question to interfere with employees’ rights under the Act and a description of the language Wendy’s adopted to replace the problematic policies as part of its settlement of the charges. Both parts of the Memorandum will be of interest to employers and attorneys who draft, apply and enforce handbooks and other workplace policy documents.

Part 1: Examples of Handbook Rules found by the Board to be Lawful and Unlawful in recent decisions

  • Employer Handbooks Rules Regarding Confidentiality – The Memorandum reviews the Board’s precedents holding that “Employees have a Section 7 right to discuss wages, hours, and other terms and conditions of employment with fellow employees, as well as nonemployees such as union representatives.” Interestingly, the Memorandum also states that “broad prohibitions on disclosing ‘confidential’ information are lawful so long as they do not reference information regarding employees or anything that would reasonably be considered a term or condition of employment, because employers have a substantial and legitimate interest in maintaining the privacy of certain business information.”  The Memorandum further “clarifies” by advising that “an otherwise unlawful confidentiality rule will be found lawful if, when viewed in context, employees would not reasonably understand the rule to prohibit Section 7 protected activity.”
  • Employer Handbooks Rules Regarding Employee Conduct toward the Company and Supervisors – As explained in the Memorandum, “Employees also have the Section 7 right to criticize or protest their employer’s labor policies or treatment of employees.”  The Memorandum offers an overview of decisional law, with particular attention to cases involving rules that “prohibit employees “from engaging in ‘disrespectful,’ ’negative,’ ‘inappropriate,’ or ‘rude’ conduct towards the employer or management, absent sufficient clarification or context.”  As further noted, employee criticism of the employer “will not lose the Act’s protection simply because the criticism is false or defamatory.”
  • Employer Handbooks Rules Regulating Conduct Towards Fellow Employees – This section of the Memorandum focusses on language and policies that the Board has found to interfere with the Section 7 right employees have ‘to argue and debate with each other  about unions, management, and their terms and conditions of employment,” which the General Counsel explains the Board has held will not lose their protection under the Act, “even if it includes ‘intemperate, abusive and inaccurate statements.” Of particular interest in this portion of the Memorandum is the examination of policies concerning harassment.  The Memorandum notes that “although employers have a legitimate and substantial interest in maintaining a harassment-free workplace, anti-harassment rules cannot be so broad that employees would reasonably read them as prohibiting vigorous debate or intemperate comments regarding Section 7 protected subjects.”
  • Employer Handbooks Rules Regarding Employee Interaction With Third Parties – This section of the Memorandum focuses on employer policies and provisions that seek to regulate and restrict employee contact with and communications to the media relating to their employment.  The General Counsel notes that “(A)nother right employees have under Section 7 is the right to communicate with the new media, government agencies, and other third parties about wages, benefits, and other terms and conditions of employment,” and that rules “that reasonably would be read to restrict such communications are unlawful.” The General Counsel acknowledges however that “employers may lawfully control who makes official statements for the company,” any such rules must be drafted so as “to ensure that their rules would not reasonably be read to ban employees from speaking to the media or third parties on their own (or other employees”) behalf.
  • Employer Handbooks Rules Restricting Use of Company Logos, Copyrights and Trademarks – The Board has found many employer policies, whether contained in employee handbooks or elsewhere, that broadly prohibit employees from using logos, copyrights and  trademarks to unlawfully interfere with employees’ Section 7 rights.  While the General Counsel acknowledges that “copyright holders have a clear interest in protecting their intellectual property,” the Board has found, with the approval of such courts as the Fourth Circuit Court of Appeals, that “handbook rules cannot prohibit employees’ fair protected use of that property.”  In this regard the General Counsel states in the Memorandum that it is his office’s position that “employees have a right to use the name and logo on picket signs’ leaflets, and other protected materials,” and that “Employers’ proprietary interests are not implicated by employees’ non-commercial use of a name, logo, or other trademark to identify the employer in the course of Section 7 activity.”
  • Employer Handbooks Rules Restricting Photography and Recording – While many handbooks and policies prohibit or seek to restrict employees from taking photographs or making recordings in the workplace and on employer policy, the Memorandum states that “Employees have Section 7 right to photograph and make recordings in furtherance of their protected concerted activity, including the right to use personal devices to take such pictures make recordings.”  The Memorandum further notes that such policies will be found to be overbroad “where they would reasonably be read to prohibit the taking of pictures or recordings on non-work time.”
  • Employer Handbooks Rules Restricting Employees from Leaving Work – With respect to handbook or other policies that restrict employees from leaving the workplace or from failing to report when scheduled, the Memorandum notes that “one of the most fundamental rights employees have under Section 7 of the Act is the right to go on strike,” and therefore “rules that regulate when an employee can leave work are unlawful if employees reasonably would read them to forbid protected strike actions and walkouts.”  Not all rules concerning absences and leaving the workstations are unlawful.  A rule would be lawful if “such a rule makes no mention of ‘strikes,’ ‘walkouts,’ ‘disruptions’ or the like” since employees should “reasonably understand the rule to pertain to employees leaving their posts for reasons unrelated to protected concerted activity.”
  • Employer Conflict of Interest Rules – The Memorandum states that under Section 7 of the Act, employees have the right to engage in concerted activity to improve their terms and conditions of employment, even if that activity is in conflict with the employer’s interests.  It cites as examples of such activities that could arguably be in violation of broad conflict of interest policies as protests outside the employer’s business, organizing a boycott of the employer’s products and services and solicitation of support for a union while on non-work time.  The Memorandum notes that when a conflict of interest policy “includes examples of otherwise clarifies that it limited to legitimate business interests (note: as that term is defined by the General Counsel and the Board) employees will reasonably understand the rule to prohibit only unprotected activity.”

Part 2: The Wendy’s International LLC Handbook Cases

The second part of the Memorandum relates to the Board’s settlement of a series of unfair labor practice charges against Wendy’s International LLC (Wendy’s) alleging that various provisions of the handbook were overbroad and unlawfully interfered with employees’ rights under the NLRA.  The company entered into an “informal, bilateral Board settlement agreement.  In this section, the GC explains why various provisions were found unlawful and then sets forth negotiated replacement policies that the GC found did not violate the Act.  While not a formal “safe harbor” since this is the position of the General Counsel and not the Board, it offers very good advice for employers and attorneys in this area.  The Wendy’s policies that the General Counsel argued violated employees’ Section 7 rights and the replacements that the General Counsel found acceptable concerned the following areas:

  • Handbook Disclosure Provision – The handbook in issue contained a broad prohibition against disclosure of the handbook and the information it contained without the company’s express prior written permission.  The General Counsel found this to be unlawful because it prohibited disclosure of employment practices to third parties such as a union or the NLRB.
  • Social Media Policy – While the General Counsel acknowledged that employers have “a legitimate interest in ensuring that employee communications are not construed as representing the employer’s official position,” the General Counsel found the company’s rule to be overbroad since it prohibited a much broader range of communications that would be protected by Section 7.  This included photography and recording and no retaliation provisions.
  • Conflict of Interest Policy
  • Company Confidential Information Provision
  • Employee Conduct
  • Walking Off the Job Without Authorization
  • No Distribution/No Solicitation Provision
  • Restaurant Telephone; Cell Phone; Camera Phone/Recording Devices Provision

While Memorandum GC 15-04 arguably does not contain “new” information or changes in policy or case law, it should be useful for employers and practitioners (and employees) in that it provides a concise summary of the General Counsel’s views on this wide range of matters and examples of language that is likely to be found lawful in future proceedings.  Of course it is important to note that each charge is decided on its own facts and the actions and statements of employers and their supervisors in connection with the application and enforcement of the particular provision will almost always be relevant to the determination of whether the Board will issue a complaint on a particular ULP Charge.

New Union Rules and Rulings: Proactive Strategies for Employers Facing Today’s Aggressive National Labor Relations Board and New Expedited Representation Elections

April 14, 2015 – Hilton Westchester, Rye Brook, New York

May 7, 2015 – The L.A. Hotel Downtown, Los Angeles, California

The National Labor Relations Board (NLRB) has adopted dramatic new rules and processes for union representation elections scheduled to take effect on April 14, 2015. The NLRB has also changed many of its standards concerning workplace rules, handbooks and policies affecting ALL EMPLOYERS, not only unionized workplaces.

This interactive workshop will address critical headline issues developing from today’s aggressive, union-friendly NLRB and provide innovative techniques and proactive and preventive strategies to prepare and respond to these developments. Specifically, our speakers will explain and offer tactics on:

  • New election rules that will bring fast elections in small units, with limited opportunity for employers to present both sides to employees and resolve key questions before a vote
  • NLRB’s evolving and expansive definition of joint employers including franchisors and franchisees
  • Developing and enforcing handbooks, policies, practices and work rules, including use of email, social media, and protection of confidential information that will withstand the NLRB’s increasing scrutiny
  • NLRB’s expanding view of protected concerted activity, including social media, workplace confrontations, class action waivers and other recent NLRB decisions

To review locations and a briefing agenda, please click here.  To register, please click here.

The fee to attend this briefing is $50 for the first person and $25 for each additional person from the same organization. The fee includes breakfast, workshop materials, and lunch. Overnight accommodations can be arranged directly with the hotel.

For additional information, please contact Elizabeth Lynch Gannon at egannon@ebglaw.com or 202/861-1850.

By Maxine Neuhauser

As we have discussed on a number of prior occasions (Fifth Circuit Rejects The NLRB’s D.R. Horton Decision On Arbitration Waivers; Obama’s Labor Agenda Continues to Advance – Griffin Confirmed as NLRB GC; NLRB Administrative Law Judge Finds Medical Center’s Technology Usage Policies Violated Employees Rights Under the National Labor Relations Act. and Labor Law vs. Common Sense – NLRB Continues Targeting Non-Union Employers and Common Sense) the National Labor Relations Board (“NLRB” ) and its Administrative Law Judges continue to find that employment policies designed to provide protection to employers and employees may be unfair labor practices (ULPs) under the Act.

In Boch Imports, Inc. d.b.a. Boch Honda and International Ass’n of Machinists, Case No. 1-CA-83551 (Jan. 13, 2014), the ALJ ruled that multiple provisions in the employee handbook of a retail automobile dealership (“Boch” or “Company”) constituted ULPs in violation of of the National Labor Relations Act (“Act”) because they impinged on the employees’ rights to discuss their conditions of employment and to engage in concerted activities.  The ALJ targeted the following policies:

  • Confidential  and Proprietary Information. This provision included a prohibition barring employees “from disclosing or authorizing the disclosure or use of any “Confidential Information,” including “compensation structures and incentive programs.”
  • Discourtesy. This provision included a prohibition of employees ,“use of profanity or disrespect to a … co-worker  or engaging in any activity which could harm the image of the Company. . .      .”
  • Inquiries Concerning Employees. This provision included a  prohibition barring employees from providing, “personal information of any      nature concerning another employee (including references) to any outside      source unless approved by the Human Resources Department and authorized,      in writing by the employee . . . .”
  • Social Media Policy.This policy included provisions  that:
    •  prohibited employees from disclosing any information about the Company’s employees or customers;
    •  required employees to identify themselves when posting comments about the Company or its business;
    •  prohibited employees from referring to the Company in postings that would negatively impact the Company’s reputation or brand;
    •  prohibited employees from engaging in activities that could have a negative effect on the Company, even if occurring off Company property or off the clock;
    •  prohibited employees from using the Company’s logos for any reason;
    •  prohibited employees from posting videos or photos recorded in the workplace;
    •  required employees to contact the Company’s Vice President of Operations before making statements to the media;
    •  required employees to provide the Company with access to any commentary posted by employees on social media sites; and
    •  required employees to write and post respectfully.
  • Solicitation and Distribution. This provision restricted non-employees from soliciting and distributing literature or other materials at any time on property adjacent to the Company’s premises.
  • Dress Code and Personnel Hygiene. This provision barred, “Employees who have contact with the public” from wearing “pins, insignias, or other message clothing which are not provided to them by the Company . . . .”

The ALJ upheld the ban on the wearing of pins because of the potential for pins to cause accidental damage to vehicles (e.g., by falling into an engine or scratching a vehicle’s interior or exterior). The ALJ ruled, however, that the blanket prohibition to insignias on clothing constituted a ULP because customer exposure to insignias, “alone, is not a special circumstance allowing the employer to prohibit the display.” Rather, “There are numerous factors that need to be weighed to determine whether a displayed item constitutes special circumstances and should be permitted, including size and the message thereon.”

The Boch decision addresses many, but not all, of the employer policies that the NLRB has been targeting recently. In December 2013, for example, an ALJ found that an employer’s “No Gossip Policy” constituted a ULP. In Laurus Technical Institute and Joslyn Henderson, Case 10-CA-093934 (Dec. 11, 2013). The employer, a school, had fired an employee for violating the school’s no-gossip policy, which defined “gossip” as including:

  • talking about a person’s professional life without his/her supervisor present;
  • negative, or untrue, or disparaging comments or criticisms of another person or persons; and
  • creating, sharing, or repeating a rumor about another person.

The ALJ in that case had no difficulty in finding that the no-gossip policy was overbroad and that the employee’s discharge for violating the policy likewise violated the Act.

The Boch and Laurus decisions illustrate the increased scrutiny that the NLRB has been giving to employee handbooks over the past few years. These and other recent cases show that the NLRB is taking aim at employee handbooks and broadly interpreting whether an employer’s policies and prohibitions would reasonably tend to chill employees in the exercise of their statutory rights under the Act. Accordingly, employers that have not done so recently may wish to consider a handbook review.