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NLRB Decision Impacts Employer Social Media Policies

Posted on Mon, May 19, 2014 @ 10:03 AM

by Jack B. HarrisonJack B. Harrison

On April 22, 2014, an administrative law judge for the National Labor Relations Board (“NLRB”) held that certain provisions of the Kroger Co. of Michigan’s online communication policy was unlawfully broad because specific provisions of the policy could reasonably be interpreted as infringing upon employees rights under the National Labor Relations Act.  Specifically, the decision held that the provisions at issue could be interpreted as unlawful limitations on employees’ rights under Section 7 of the Act to “self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all of such activities.”

The four specific policy provisions that were of concern to the Board in this decision follow:

  1. If you identify yourself as an associate of the Company and publish any work-related information online, you must use this disclaimer: “The postings on this site are my own and do not necessarily represent the postings, strategies or opinions of The Kroger Co. family of stores.”

  2. You must comply with copyright, fair use and financial disclosure laws, and you must not use without permission or compromise in any way the Company’s intellectual property assets (like copyrights, trademarks, patents or trade secrets –including, for example, Kroger or banner logos, or trade names of products, or non-public information about the Company’s business processes, customers or vendors).

  3.  Confidential and proprietary information should not be discussed in any public forum unless it has been publicly reported by the Company. Confidential and proprietary information includes but is not limited to: financial results, new store designs, current or future merchandising initiatives, and planned technology uses or applications. Do not comment on rumors, speculation or personnel matters.

  4. When online, do not engage in behavior that would be inappropriate at work—including, but not limited to, disparagement of the Company’s (or competitors’) products, services, executive leadership, employees, strategy and business prospects.

In each instance, the Board concluded that the provisions were unlawfully broad, in that a broad application of these restrictions would, in the Board’s view, necessarily implicate an employee’s legitimate Section 7 activity.  For example, the Board found unlawful the following sentence included in these policies: “Do not comment on rumors, speculation or personnel matters.”  The Board’s reasoning for finding this statement unlawful was that a “rule prohibiting employees from commenting on “personnel matters” strikes at the heart of Section 7 activity,” in that this rule could arguably lead employees to believe that they were prohibited from discussing conditions of employment and wages with union representatives, a right protected by Section 7.

The important learning for employers from this decision is that they must be cautious in the language used in Social Media policies to insure that they do not potentially reach activity protected by the National Labor Relations Act.  In drafting these policies, prudent employers should adhere closely to the language provided in the Board’s Social Media Policy Guidance Memoranda, keeping in mind that the Board has made it clear that it will interpret even the language contained in the sample policies in its own Memoranda very narrowly.

With the dramatic increase in the use of social media in the workplace and by employees outside the workplace, it is important that employers have policies in place that both protect their interests and can withstand Board scrutiny.  Additionally, as the law in this area is rapidly changing, employers must constantly review their social media policies to insure that they are consistent with the current state of the law.

Tags: Social Media Policy, NLRB

Arbitration Agreements Waiving Employees' Rights to Class & Collective Actions are Enforceable

Posted on Tue, Apr 22, 2014 @ 09:27 AM

by Jack B. HarrisonJack B. Harrison

On March 21, 2014, the U.S. Court of Appeals for the Eleventh Circuit, in Walthour v. Chipio Windshield Repair, LLC, et al., joined four other Circuit Courts of Appeals in holding that an arbitration agreement that waives the right of an employee to bring a class or collective action under the Fair Labor Standards Act (“FLSA”) is enforceable.  In so holding, the Eleventh Circuit joined the Second, Fourth, Fifth, and Eighth Circuits in giving employers support regarding the enforceability of class and collective action waivers.

In Walthour, the employees had signed arbitration agreements with their employer, under which they agreed to arbitrate all claims arising out of their employment and to pursue claims only individually, rather than collectively or as a class.  Additionally, the agreement at issue specifically waived the ability of the employees to bring a class action in the arbitration context.   However, even in the face of the agreement, once the employees’ employment ended, the employees brought a collective action against the employer under the FLSA.  In this lawsuit, the employees alleged that the employer failed to pay them the required minimum wage and overtime and failed to maintain records required by the FLSA.  The employer then filed a motion to compel arbitration based on the agreement that the employees had signed.  The federal district court granted the motion, a decision that was then appealed to the Court of Appeals.

After reviewing the language of the FLSA, its legislative history, and Supreme Court precedents interpreting the FLSA, the Court of Appeals dismissed the argument made by the employees that the right to bring a collective action under the FLSA is a non-waivable substantive right, concluding that there was no “congressional command” under which the FLSA had overridden the requirement of the Federal Arbitration Act (“FAA”) that collective action waivers in arbitration agreements were to be enforced.

Based on the FAA’s “liberal federal policy favoring arbitration agreements,” the Court of Appeals concluded that the agreements in question were enforceable under the FAA.  Based on multiple Supreme Court precedents (American Express Co. v. Italian Colors Rest. (2013); AT&T Mobility LLC v. Concepcion (2011); Gilmer v. Interstate/Johnson Lane Corp. (1991)), the Court of Appeals concluded that it was compelled to “rigorously enforce arbitration agreements according to their terms.” (quoting American Express Co. v. Italian Colors Rest.).

The importance of this decision for employers is that the Eleventh Circuit's decision in Walthour is consistent with decisions by other Courts of Appeals and with recent Supreme Court decisions regarding the enforceability of arbitration agreements that include waivers of class and collective actions by employees.  However, prudent employers should note that the NLRB continues to take the position that waivers such as this violate the rights of employees to engage in protected activity in concert under the National Labor Relations Act.  As a result, the NLRB continues to bring charges for unfair labor practice against employers that include class and collective action waivers in their arbitration agreements.

Tags: FLSA, US Court of Appeals, Federal Arbitration Act, NLRB

Unionizing Nursing Home RNs More Difficult

Posted on Tue, Aug 13, 2013 @ 08:33 AM

Jack B. Harrisonby Jack B. Harrison

On July 2, 2013, a divided panel of the United States Court of Appeals for the Sixth Circuit in GGNSC Springfield LLC, d/b/a Golden Living Center-Springfield v. NLRB, No. 12-1529 (6th Cir. July 2, 2013), held that registered nurses (“RNs”) who worked as charge nurses in a nursing home were supervisors under the National Labor Relations Act.  In so holding, the Court determined that the RNs exercised sufficient independent judgment in issuing discipline to non-RN employees to be considered supervisors.  The net impact of this decision was to make clear that the RNs in this case did not have the right to organize and collectively bargain.

FACTS AND PROCEDURAL BACKGROUND

The nursing home at issue in this case, Golden Living Center, is located in Springfield, Tennessee.  Golden Living Center has approximately 100 employees, including 12 registered nurses (“RNs”), 10 licensed practical nurses (“LPNs”), and 46 certified nursing assistants (“CNAs”).  Under the organizational structure of Golden Living Center, RNs and LPNs are considered “charge nurses,” who report directly to the Director of Nursing.

In 2011, the International Association of Machinists and Aerospace Workers, AFL-CIO filed a petition with the National Labor Relations Board (“NLRB”) seeking to represent the RNs employed by Golden Living Center in collective bargaining.  Golden Living Center challenged the petition, arguing that the RNs, as charge nurses, were supervisors under the National Labor Relations Act and, thus, not allowed to unionize.  In November 2011, the Regional Director of the NLRB determined that for the purposes of the Act, the RNs were not supervisors.  The Regional Director, therefore, granted the petition, certified the bargaining unit, and ordered an election.  Subsequently, an election was held and the RNs elected the union as their bargaining representative.  However, Golden Living Center refused to recognize or to bargain with the union.  As a result of this refusal to bargain, an unfair labor practice complaint was filed with the NLRB by the union.  The NLRB upheld the complaint and ordered Golden Living Center to bargain.  A petition for review of the NLRB decision was then filed by Golden Living Center.

COURT OF APPEALS DECISION

The first issue addressed by the Court of Appeals was whether the NLRB even had the authority to issue an order.  This argument centered on the decision by the Court of Appeals of the D.C. Circuit in Noel Canning v. N.L.R.B., 705 F.3d 490 (D.C. Cir. 2013), holding that three of the Board’s five members, whom President Obama had appointed during a Congressional recess, had been appointed in violation of the Constitution because they were appointed without the advice and consent of the Senate.  The Court of Appeals refused to consider this argument, asserting that “[e]rrors regarding the appointment of officers under Article II are ‘nonjurisdictional.’”

In considering the merits of the case before them, the Court of Appeals focused on whether or not the RNs, as charge nurses, had the authority to “discipline” CNAs, such that they would be considered supervisors under the Act.  A majority of the panel found that the RNs in question did have disciplinary authority, such that they were supervisors.  Under Golden Living Center’s discipline policy, CNAs were to receive four written warnings before being terminated.  Under this disciplinary policy, RNs were given the authority to issue written memoranda in the event of misconduct by a CNA, with the written memorandum by the RN immediately triggering a written warning.  A majority of the panel found that these written memoranda constituted “discipline” because they “’lay a foundation’ for future adverse employment action.”  Additionally, the majority found that under the policies of Golden Living Center, the RNs exercise independent judgment when issuing discipline, in that they “can either do nothing, provide verbal counseling (and decide whether to document the counseling), or draw up a written memorandum.”  In dissent, Judge Merritt strongly disagreed with the findings of the majority, arguing that the majority’s decision was simply results driven and anti-union.  Judge Merritt asserted that the majority was indulging in “linguistic wordplay over the word [discipline] without even referring to or trying to understand the purpose of the statutory language at issue.”

CONCLUSION

While this decision is certainly a victory for healthcare workers and provides some guidance to employers as to what may constitute the exercise of discipline for the purposes of determining the supervisory status of an employee, the split in the decision certainly makes it clear that disagreement remains in the courts as to what constitutes “discipline” for the purposes of determining whether an employee is or is not a supervisor.  However, this decision does make it clear that, at least in some situations, the exercise of discipline may include more than just suspensions and terminations.  Prudent employers should continue to pay attention to the roles various employees may play within their disciplinary policies and programs and continue to monitor developments in the courts regarding these issues.

Tags: Unionizing Nursing Home RNs, Sixth Circuit, NLRA, NLRB, National Labor Relations Board

Court of Appeals Strikes Down NLRB Poster Rule

Posted on Wed, May 08, 2013 @ 12:30 PM

Jack B. Harrisonby Jack B. Harrison

On Tuesday, May 7, 2013, in National Ass’n of Manufacturers v. National Labor Relations Board, a three-judge panel of the United States Court of Appeals for the D.C. Circuit issued an opinion striking down a controversial rule issued in 2011 by the National Labor Relations Board (“NLRB”).  This rule would have required companies to post a notice affirmatively advising employees of their rights under federal labor law, including the right to form or join a union.  While the rule had been scheduled to go into effect on April 30, 2013, its implementation had been stymied by the issuance of an injunction and several court challenges.

The Court of Appeals was troubled by the fact that the rule made the failure of a company to post the required poster an unfair labor practice in itself or, at a minimum, prima facie evidence of union animus in an unfair labor practice proceeding.  In striking down the rule, the Court of Appeals relied upon section 8(c) of the National Labor Relations Act (“NLRA”), which states:

The expressing of any views, argument, or opinion, or the dissemination thereof, whether in written, printed, graphic, or visual form, shall not constitute or be evidence of an unfair labor practice under any of the provisions of this Act, if such expression contains no threat of reprisal or force or promise of benefit.

29 U.S.C. § 158(c).  Using this provision, the Court of Appeals ultimately concluded that if the expression of views was protected under the NLRA against a charge that such an expression was an unfair labor practice, so long as the expression was noncoercive, so too was silence or the failure to express a particular viewpoint.  In his opinion, Senior Judge Randolph wrote, "[t]his is why, for example, a company official giving a noncoercive speech to employees describing the disadvantages of unionization does not commit an unfair labor practice if, in his speech, the official neglects to mention the advantages of having a union."  As a result, the Court of Appeals concluded that the NLRB’s poster requirement rule violated section 8(c), in that the rule made the failure of an employer to speak in a particular manner a per se unfair labor practice.

This may mean the end of the line for the NLRB’s poster requirement rule.  However, the NLRB could seek rehearing of this decision by the en banc Court of Appeals for the D.C. Circuit or the NLRB could seek to immediately appeal this decision to the Supreme Court.  Additionally, a federal district judge in South Carolina in April, 2012 also held that the NLRB lacked the authority to issue this poster requirement rule.  That South Carolina decision is currently on appeal to the United States Court of Appeals for the Fourth Circuit.  In the unlikely event that the Fourth Circuit should reverse the district court’s holding and uphold the NLRB’s rule, a split in the Circuits would exist, making it more likely that the Supreme Court would ultimately resolve the issue.

Thus far, the NLRB has had a very rough ride before the D.C. Court of Appeals of late.  Because implementation of the poster requirement rule has been placed on hold as a result of various challenges, employers are currently relieved of the obligation to prominently display the poster in their workplaces.  Prudent employers should continue to monitor this issue and the actions taken by the NLRB in this area.  We will continue to provide updates as new issues arise.

Tags: Poster Rule, NLRA, NLRB, National Labor Relations Board

NLRB Impact: Employer Discipline and Investigations

Posted on Fri, Mar 15, 2013 @ 12:28 PM

by Jack B. Harrison Jack B. Harrison

While the United States Court of Appeals for the District of Columbia Circuit issued an order on January 25, 2013 striking President Obama's recess appointments to the National Labor Relations Board ("NLRB") as unconstitutional (Noel Canning v NLRB, Case No. 12-1115), the NLRB has given no indication that it intends to slow down in its work.  For example, the Board recently rendered two decisions that have importance for employers in the areas of discipline and investigations.

For example, in Alan Ritchey, Inc., 359 NLRB No. 50 (Dec. 14, 2012, published Dec. 20, 2012), the Board held that where a collectively bargained grievance and arbitration system does not already exist, as is normal where an employer and a union are negotiating a first contract, an employer generally may no longer unilaterally exercise discretion in imposing significant discipline upon employees (i.e., suspension and termination). Instead, the Board held that the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee. This was the first time that the Board had reached such a conclusion.  The Board held that that the imposition of individual discipline in such a context was “inherently discretionary.”

As a result, the Board stated that such discipline represented a mandatory topic of bargaining each time discipline took place. The decision is to be applied prospectively from the date it was issued and will be applied to any newly organized companies without collective bargaining agreements or negotiated grievance procedures in effect.  Under this ruling, however, employers may still impose discipline without first bargaining where an employee’s continued presence would threaten safety, health, or security.

It will be more challenging for employers under Ritchey to impose serious discipline, such as suspension, demotion, or termination, where no grievance and arbitration system is in place. In cases such as this, an employer must notify and bargain with the union before it issues such discipline. This required bargaining potentially might necessitate furnishing the union with information on past discipline or other matters related to the discipline imposed.

In Piedmont Gardens, 359 NLRB No. 46 (Dec. 15, 2012), the Board overruled its long-standing precedent that all written statements by employee-witnesses are automatically exempt from disclosure as long as they qualify as “witness statements.”  Anheuser-Busch, 237 NLRB 982 (1978).  In Piedmont Gardens, the issue before the Board was whether written statements by two charge nurses and a CNA regarding alleged misconduct by another CNA at a continuing-care facility were subject to disclosure to the union.  Overruling its prior holding that such statements were automatically exempt from disclosure, the Board held that it would now apply a balancing test that weighed the union’s need for the information against any legitimate and substantial confidentiality interest established by the employer.  On the specific facts before it, the Board found that one charge nurse’s statement was subject to disclosure, in that it had not been provided under an assurance of confidentiality.

Because the decision in Piedmont Gardens overrules a longstanding precedent and because employers have previously relied on the Board’s holding in Anheuser-Busch, the Board held that its decision will not be applied retroactively. As a result, in cases where the employer’s refusal to provide requested witness statements occurred before December 15, 2012, the NLRB will continue to apply Anheuser-Busch.

As a result of the Board’s decision in Piedmont Gardens, prudent employers should ensure that those who are taking witness statements as part of an investigation provide assurances of confidentiality to those witnesses prior to taking statements from the witnesses.  Additionally, employers should take care to document the employer’s specific concerns about its inability to obtain witness statements in the future if disclosure were to take place.

Tags: NLRB, National Labor Relations Board

NLRB Offers Advice on Lawful 'At-Will' Employment Policies

Posted on Thu, Nov 29, 2012 @ 02:46 PM

by Jack B. HarrisonJack B. Harrison

On October 31, 2012, the National Labor Relations Board’s General Counsel’s Office Division of Advice issued two opinions (“Advice Opinions”) regarding “at-will” clauses in two employee handbooks.  In these opinions, the General Counsel’s Office concluded that the clauses at issue were lawful.

The two clauses at issue were as follows:

AT-WILL EMPLOYMENT: The relationship between you and the Company is referred to as “employment at will.”  This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company.  No representative of the Company has authority to enter into any agreement contrary to the foregoing “employment at will” relationship.  Nothing contained in this handbook creates an express or implied contract of employment.

Employment with the Company is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company.  Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will.  No manager, supervisor, or employee of the Company has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.

As to the first clause, the opinion stated that this language was not unlawfully broad, in that the clause did not require employees to refrain from seeking to change their at-will status or to agree that the employment relationship cannot be changed in any way.  As to the second clause, the opinion concluded that the language was not unlawfully broad, in that the clause explicitly stated that the at-will relationship could be changed, allowing employees to reasonably assume that their rights under the National Labor Relations Act were not limited or prohibited in any fashion.

In the opinion, the General Counsel’s Office distinguished these clauses from a clause an Administrative Law Judge had previously held was unlawfully broad.  In the earlier ALJ decision, the clause at issue read, “I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.”  In that case, the Board found this acknowledgment was “essentially a waiver in which an employee agrees that his/her at will status cannot change, thereby relinquishing his/her right to advocate concertedly, whether represented by a union or not, to change his/her at will status.”  In contrast, the General Counsel’s opinion stated that the two clauses above were not unlawfully broad, in that the language in the clauses allowed for the possibility of a change in employees’ at-will status where agreements to that effect might be signed by a company representative, even if it be a highly placed one.  As a result, the opinion stated that employees’ efforts to unionize would not necessarily be limited or inhibited by the at-will language of the policies.

This opinion comes against the backdrop of the Board’s continuing efforts in recent years to focus its enforcement efforts on employer policies that, in the Board’s opinion, restrict employee rights unlawfully under the National Labor Relations Act.  In the course of these efforts, “at-will” employment statements, in particular, have drawn the Board’s attention.  In fact, the Board’s Acting General Counsel has, at times, suggested that even a conventional at-will statement might violate the NLRA.  With this opinion, the Board has, at least, offered some guidance as to the types of “at-will” statements and acknowledgements it might find lawful under the NLRA.

Prudent employers should exercise caution in the “at-will” statements and acknowledgements that they use, so as to avoid language that the Board has indicated it could find problematic.  Cors & Bassett attorneys are certainly available to assist employers in reviewing the various policies that might be contained within their Employee Handbook and in other documents.

Tags: At-Will Employment, NLRB, National Labor Relations Board

NLRB Guidance on Social Media Policies—Look to Wal-Mart

Posted on Wed, Nov 14, 2012 @ 09:49 AM

Robert J. Hollingsworthby Robert J. Hollingsworth

The phenomenal rise in the use of social media is reflected in the recent focus of the National Labor Relations Board (“NLRB”) on cases involving social media policies.  As people increasingly use social media to discuss all aspects of their lives, they frequently post comments about work-related matters.  These comments sometimes involve complaints about the employer, supervisors, and co-workers, often in colorful and profane language.  Given the potential that a worldwide audience may view these postings, employers have become alarmed at the potential for the dissemination of confidential information or trade secrets; injury to the employer’s business reputation; threats, harassment or ridicule of co-workers; or invasions of privacy, just to name a few concerns.  In response, many employers have adopted social media policies and in some cases have disciplined employees for violations of these rules.

From its inception in 1935, the NLRB has protected the right of workers to engage in “protected concerted activity.”  This refers to the right of employees in the private sector to join together to improve their wages and working conditions, with or without a union, or to refrain from such activities.  These rights may be exercised through social media.

The General Counsel of the NLRB has issued three reports on social media policies: the first on August 18, 2011, the second on January 24, 2012, and the third on May 30, 2012.  For employers looking for guidance on how to write a social media policy that will pass scrutiny by the NLRB, the General Counsel’s third report is the most helpful.

While the General Counsel’s third report is not a model of consistency or clarity, it contains some helpful recommendations.  First, when drafting a social media policy, employers should avoid language that is too general and might restrict “protected concerted activity”: for example, a policy that prohibits employees from disclosing confidential information.  Since “confidential” information could include wages, the NLRB would consider such a policy as too broad.  The General Counsel’s advice: define and give examples of “confidential” information so that employees will understand that it does not include “wages” or other matters relating to the terms or conditions of employment

The second most helpful piece of advice from the General Counsel is that he found one employer’s social media policy to fully comply with the National Labor Relations Act.  The employer is Wal-Mart.  The General Counsel was so favorably impressed with Wal-Mart’s revised policy that he attached the entire policy to his report.

For any employer drafting or revising its own policy, the Wal-Mart policy provides a helpful starting point.  Following this policy will not absolutely guarantee that the NLRB won’t challenge some aspect of the policy in the future, but an employer adopting some version of this policy will have the comfort of knowing that its policy presently enjoys the endorsement of the General Counsel.  Click here for a copy of the Wal-Mart policy.

Tags: Social Media Policy, Protected Concerted Activity, NLRB, National Labor Relations Board

NLRB Remains Focused on Discipline Decisions by Employers

Posted on Fri, Oct 12, 2012 @ 12:57 PM

Jack B. Harrisonby Jack B. Harrison

In a recent NLRB decision the Board found that an employer's harrassment investigation was lawful, but that the resulting discipline was not.

For a moment consider the following facts:

An employer faces an attempt by its employees to decertify the workplace union.  As the campaign goes on, three union newsletters posted in the employee breakroom are anonymously defaced apparently by someone in support of the union.  On one newsletter, someone writes, “Dear P*ssies, please read.”  On a second newsletter, someone writes, “Hey cat food lovers, how’s your income doing?” On the third newsletter, someone writes, “Warehouse workers, RIP.”  Not surprisingly, several female workers then complain about the statements, asserting they are “vulgar, threatening and offensive.”

As it is legally obligated to do, the employer conducts an investigation.  Based on the handwriting, the investigation becomes focused on a specific male employee. The employer then interviews the employee, who denies the handwriting is his.  At that point, the employer takes no action.  Then, the investigation takes a rather strange turn.   

The employee tries to call his union representative to discuss the investigation.  However, in making the call, the employee apparently “unwittingly dialed” the employer’s vice president, rather than his union representative. Assuming he is talking to the union representative, the employee confesses to defacing the newsletters.  At that point, the vice president identifies himself to the employee.  Needless to say, the employee is shocked, and immediately denies his identity.  Nevertheless, the employer then summons the employee to a meeting, where he is suspended.  Ultimately, the employee is discharged for the comments written on the newsletter and for his dishonesty in the investigation.

On its face, this would appear to be a justifiable discharge. 

These were the facts before the National Labor Relations Board in Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (September 19, 2012).  However, the union filed charges challenging the validity of the discharge in this case.  In its decision, the Board first upheld the employer’s right to investigate the complaints, determining that “employers have a legitimate business interest in investigating facially valid complaints of employee misconduct, including complaints of harassment.”  Additionally, the Board upheld the employer’s right to question the employee, so long as the questioning did not delve into his union views or any of his union activities.  However, when turning to the discharge itself, the Board found that the employee’s statements made on the newsletters, as well as his false denial, were protected activity under the National Labor Relations Act.  The Board further held that the employer’s discharge of the employee for this conduct was a violation of the Act, in that the employer had discharged the employee for engaging in what the Board determined was protected activity.  Regarding the offensive statements written on the newsletters, the Board concluded that they were merely “impulsive” and not premeditated, and therefore did not lose their protected status.

What does this decision mean for a prudent employer?  At the core, it is a caution to an employer that when facing employee misconduct that may be protected activity or may have occurred in the context of protected activity under the Act, an employer should take care to insure that any investigation of the misconduct focus solely on the misconduct itself and steer clear of the protected activity context in which it may have occurred.  This decision also indicates that the Board remains focused on discipline decisions by employers, as well as attempts by employers to enforce reasonable work rules designed to promote civility and decorum in a workplace.

Tags: Protected Concerted Activity, NLRB, National Labor Relations Board

More From the NLRB on Employee Handbooks & Personnel Policies

Posted on Mon, Oct 01, 2012 @ 03:37 PM

by Jack Harrison Jack B. Harrison

For some time now, the National Labor Relations Board has been paying a great deal of attention to issues related to personnel policies.  In several recent decisions, the Board dealt with the issue of whether and when employees could “reasonably conclude” that certain facially neutral employee policies required them to refrain from engaging in protected concerted activities.

In Costco Wholesale, Inc., 358 NLRB No. 106 (Sept. 7, 2012), the Board concluded that Costco’s rule related to electronic posting that prohibited statements that “damage the Company . . . or damage any person’s reputation” was overly broad because it arguably also included complaints by employees regarding the company’s treatment of employees.  The Board indicated that where a social media policy is narrowly targeted toward preventing egregious employee misconduct, such as “sabotage and sexual or racial harassment,” it would likely withstand scrutiny by the Board. Therefore, employers should pay particular attention to their social media policies to insure that they fall on the right side of the line between impermissible social media policies that improperly restrain employees’ protected conduct and permissible social media policies that focus on workplace decorum.

Additionally, the Board in Costco concluded that handbook provisions aimed at restricting employees from sharing private or otherwise sensitive information about sick days, leaves of absence, FMLA leave, ADA issues, workers’ compensation injuries, personal health information, payroll, Social Security numbers, employee names, addresses, telephone numbers and email addresses, were unlawfully restrictions on the rights of employees to discuss terms and conditions of employment and, thus, violated the Act.

In Flex Frac Logistics, LLC, 358 NLRB No. 127 (Sept. 11, 2012), the Board was faced with a provision in an at-will employment agreement that prohibited employees from disclosing “confidential information,” including “personnel information,” to individuals “outside the organization.” In reviewing this provision, the Board concluded that the provision, by its language, prohibited employees from discussing the terms and conditions of their employment with union representatives.  The Board determined that, to the extent the provision was ambiguous, it was to be construed against the employer, in that the provision could be read to have coercive meaning in violation of the Act.

In TT&W Farm Products, Inc., 358 NLRB No. 125 (Sept. 11, 2012), the Board reviewed five rules contained in an employee handbook that were related to employees leaving their workstations during their assigned work times. The Board concluded that where the rules were reasonably read to prohibit unauthorized leaves or breaks, they were permissible.  However, the Board also determined that rules that prohibited employees from “walking off the job” or from “willfully restricting production” were unlawful because they prohibited participating in a protected strike.

These decisions make it clear that the Board continues to be focused on provisions contained in employee handbooks and personnel policies, reviewing workplace rules and policies in both non-union and union workplaces to determine if they reasonably tend to interfere with employees’ rights under the Act.  In light of the Board’s continued interest, prudent employers should continue to review their rules and policies to insure that they are consistent with the guidance given by the Board through its decisions.

Tags: Employee Handbooks, Protected Concerted Activity, NLRB, National Labor Relations Board

NLRB Suspends "Quickie Election" Rule

Posted on Thu, May 17, 2012 @ 03:05 PM

Robert J. Hollingsworthby Robert J. Hollingsworth

On May 15, 2012, the National Labor Relations Board (“NLRB”) announced that it “has temporarily suspended implementation” of its new expedited election procedures.  The Board’s action was in response to a decision the previous day by a federal district court in the District of Columbia that the NLRB had improperly adopted the new “quickie election” rule, which became effective on April 30, 2012.  The General Counsel of the NLRB has now advised the NLRB Regional Offices to revert to their previous procedures for election petitions.

At the time of the NLRB’s announcement, there were about 150 election petitions pending under the new rule.  It will be interesting to see how many of the 150 or so parties seeking elections will continue their cases under the old procedures.  The reaction of these parties will indicate how much the new procedures influence unions to seek elections they would not have requested under the old procedures.

The Board’s suspension of its new rule is just the initial skirmish in what is likely to be a long battle.  The district court’s ruling was based on a single procedural defect: the NLRB lacked a quorum necessary to adopt the new rule.  The parties challenging the new rule, which include the U.S. Chamber of Commerce, have raised several other arguments that still need to be addressed.

Despite suspending the new rule, the Democrat majority that controls the Board has no intention of backing down.  Board Chairman Mark G. Pearce commented:

We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation....  We are determined to move forward.

“Moving forward” clearly indicates that these Board members intend to re-approve the new election procedures before the full five-member NLRB panel.

Stay tuned for further developments.  The battle has just begun.

Tags: Quickie Election Rule, NLRB, National Labor Relations Board