In a sharp setback for the National Labor Relations Board (the “Board”), a federal district court in Washington, D.C. (the “Court”), struck down the Board’s election rules, which took effect on April 30, 2012, on technical grounds, holding that the Board did not have a properly constituted quorum of three members when it voted to change its election rules and procedures. See Chamber of Commerce v. NLRB, No. 11-2262 (JEB), Slip Op., 2012 WL 1664028 (D.D.C. May 14, 2012). This decision comes less than a month after a federal appeals court struck down the Board’s notice-posting rule that would have required employers to advise employees of their rights under the National Labor Relations Act, and less than two years after the Supreme Court of the United States in New Process Steel LP v. NLRB, 130 S. Ct. 2635, 560 US __ (2010), held that the Board, which is traditionally comprised of five members, must have a quorum of three members to lawfully issue its decisions.
On January 25, 2012, the National Labor Relations Board’s (“NLRB”) Acting General Counsel (“AGC”) Lafe Solomon issued a second report on unfair labor practice cases involving social media issues. We discussed his earlier report in our Act Now Advisory of October 4, 2011.
The new report covers an additional 14 cases, all of which fall into the same two categories as the cases discussed in the earlier report, namely: (1) termination of employees resulting from statements made in social media forums about their working conditions or their employers; and/or (2) claims that an employer’s social media policy violates the National Labor Relations Act (the “Act”) because its prohibitions may “chill” employees in the exercise of their rights under the Act to engage in concerted activity for their mutual aid and protection. Again, the report emphasizes that the Act’s provisions apply to workplaces where the employees are not represented by a union and where there is no union activity, as well as to unionized employees.
Two recent decisions on arbitration, one from the National Labor Relations Board (“NLRB” or “Board”) and one from the Supreme Court of the United States, present an interesting question: Can employers limit employees from launching potentially costly class actions? Some employers have applicants or new employees sign a separate agreement, or include a clause in application forms or in the employee handbook (which employees acknowledge), requiring employees to bring future disputes to arbitration and to agree that the arbitration will be individual only – not a class or collective action. These companies apparently hope that arbitration, and the avoidance of a jury trial, will be less costly than defending a court action if a dispute arises. They also hope to eliminate the attraction and risk of class and collective actions, which often are seen as providing undue leverage and a larger total payday to claimants and their attorneys.
On September 28, 2011, a National Labor Relations Board (“NLRB”) administrative law judge (ALJ) found that Knauz BMW lawfully terminated the employment of Robert Becker, a salesperson, after he posted pictures and comments on his Facebook page about two different workplace incidents — an automobile accident and a dealership sales event. The judge also found that several Employee Handbook policies, unrelated to social media postings, contained overly broad language. Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker, Case No. 13-CA-46452 (Sept. 28, 2011).
The first incident Becker posted on his Facebook page concerned an accident at a Land Rover dealership also owned by Knauz on an adjacent property. Becker posted pictures of the accident, as well as comments such as “This is your car: This is your car on drugs.” The same day, Becker also posted pictures of a dealership sales event. Becker and other salespersons disagreed with the General Sales Manager’s choice of food and beverages for the event, including hot dogs and chips. Becker posted pictures of the other salespersons with the food and beverages, as well as several comments on his Facebook page, such as:
The small 8 oz bag of chips, and the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and oranges were such a nice touch…but to top it all off…the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bunn [sic]…
Although both posts were made on the same day, managers of the dealership testified that Becker’s employment was terminated because “[he] had satirized a very serious car accident that occurred at our Land Rover facility on his Facebook page by posting pictures of the accident accompanied by rude and sarcastic remarks about the incident.”
The ALJ held that the termination for the posting of the accident was lawful because the posting did not amount to protected or concerted activity under the National Labor Relations Act (“NLRA”). Rather, Becker posted it “apparently as a lark, without any discussion with any other employee of the Respondent and [it] had no connection to any of the employees’ terms and conditions of employment.”
On the other hand, the ALJ opined that had the dealership terminated Becker’s employment for the Facebook postings regarding the sales event, the termination would have been unlawful. According to the ALJ, the sales event posting constituted protected concerted activity that could have affected Becker’s compensation. Although unlikely, a customer may have been “turned off” by the food offered at the event and may not have purchased a car or may have given the salesperson a lower rating. Further, Becker and another salesperson both spoke up during a meeting about what they considered to be the inadequacies of the food being offered at the event and salespersons also discussed the subject after the meeting. Although only Becker complained about it on his Facebook page, the ALJ equated Becker’s posting to an individual employee bringing a group complaint to the attention of management, which is protected concerted activity. The ALJ concluded, however, that Becker had been terminated for the first, unprotected posting and not the second, protected posting.
The ALJ then considered charges regarding certain policies in the dealership’s Employee Handbook. The ALJ upheld the dealership’s “Bad Attitude” policy, which mandated that employees “display a positive attitude toward their job” because it protected the relationship between the dealership and its customers. The ALJ held, however, that a policy entitled “Courtesy,” which prohibited employees from being “disrespectful,” was overly broad, as “[d]efining due respect, in the context of union activity, seems inherently subjective.” The ALJ also held that two other policies entitled “Unauthorized Interviews,” and “Outside Inquiries Concerning Employees” were also overly broad as employees “would not be able to discuss their working conditions with union representatives, lawyers or Board agents.”
Although the dealership previously notified its employees that the Employee Handbook policies at issue were rescinded and the dealership did not commit any other unfair labor practices, the ALJ nonetheless held the rescission to be insufficient. The ALJ faulted the employer for not providing further explanation about the rescission to its employees and found the rescission inadequate to inform employees that the dealership would not interfere with their rights. The dealership was ordered to post a notice informing employees of their rights to form, join or assist a union, among other things, and that the dealership would not interfere with employees’ rights.
Although the ALJ upheld the employment termination, this case provides examples of what may be considered to be protected, concerted activity under Section 7 of the NLRA, in connection not only with social media policies and practices, but Employee Handbook policies in general. For further information see Act Now Advisory: Helpful Guidance Summarizing the National Labor Relations Board’s Position on Social Media Issues: Two Reports and One Decision.
On Thursday, August 18, 2011, the Acting General Counsel of the National Labor Relations Board (“NLRB” or “Board”) issued a report on the outcome of 14 cases involving employees’ use of social media or social media policies in general. This report follows a more expansive “Survey of Social Media Issues Before the NLRB” issued by the U.S. Chamber of Commerce on August 5, 2011, which addresses 129 cases involving social media reviewed by the NLRB at some level. Further, after these reports were published, an NLRB administrative law judge (“ALJ”) issued the first decision of its kind – finding that terminating employees for using social media to express concerns about the workplace violates the National Labor Relations Act (“NLRA” or “Act”).
Read together, those two reports and that ALJ decision begin to give employers some guidance on reacting to the use of social media by their employees, and on developing social media policies. Most of the cases covered in the reports are at early stages of investigation or litigation, or were settled. Thus, the NLRB’s position may evolve further as cases are decided on fully developed records.
Generally, the cases reported on fall into two categories: (1) claims that employees have been retaliated against in violation of the NLRA as a result of statements made about their employers or working conditions on or in any of the wide variety of social media channels available, such as Twitter, Facebook, YouTube, blogs, podcasts, and the like; and (2) claims that an employer’s social media policy violates the NLRA because its prohibitions may “chill” employees in the exercise their rights under the Act.
On August 23, 2011, the National Labor Relations Board (“Board”) ruled that a hospital whose nurses are represented by a union does not have the authority to unilaterally implement an employee flu vaccination program because, in the Board’s view, ensuring patient safety is not a core purpose of the enterprise. Virginia Mason Hospital, 357 N.L.R.B. No. 53 (August 23, 2011). Specifically, the Board rejected the employer’s reliance on what is known as the “Peerless defense,” and held that the National Labor Relations Act (“NLRA”) prohibits a hospital from implementing public safety programs without first bargaining over the proposal with a union that represents its employees.
As a general rule, the NLRA requires employers to bargain with union representatives over employee wages, hours and other terms and conditions of employment. In Peerless Publications the Board established a three-part test under which an employer can act unilaterally when the proposed change goes to the protection of the core purpose of the enterprise. Virginia Mason Hospital argued, and the Administrative Law Judge (“ALJ”) agreed, that it did not have to bargain with the union over the implementation of the flu prevention program because, under Peerless, the program is fundamental to a healthcare provider’s core purpose of preventing sickness. The Board, however, with little explanation, overturned the ALJ and held that the prevention of sickness is not a hospital’s core purpose under the Peerless analysis, and that “Peerless was… essentially limited to its facts.”
In addition to creating ambiguity around what qualifies as a “core purpose” of the enterprise, the Virginia Mason Hospital decision complicates compliance with other federal employment statutes. For example, the Occupational Safety and Health Act’s (“OSHA”) General Duty Clause requires employers to provide a workplace free from serious “recognized hazards.” This means that if an employer or an employer’s industry recognizes a certain condition as hazardous, the employer is required under OSHA to take measures to protect employees from that hazard. If those measures are now mandatory subjects of bargaining, the employer faces a conundrum: implement the safety measures to protect against fines from OSHA but risk consequences from the Board, or bargain over the safety measures and risk a serious penalty from OSHA (or worse, a serious injury or illness to an employee or others).
In light of the Virginia Mason Hospital decision, employers with unionized workforces should
- Understand that the unilateral implementation of policies or procedures affecting employees can in some cases draw an unfair labor practice charge from the union and litigation with the NLRB.
- Document the “core business necessity” for any required unilateral changes in advance of anticipated union information requests.
- Implement changes as needed to protect core business values.
- Put the burden of requesting negotiations on the union by providing it with notice of any unilaterally implemented changes.
- Consult your legal counsel before unilaterally implementing changes in the workplace that you believe might affect unionized employees’ working conditions, as the law in this area is rapidly changing.
For more information about the specifics of the flu prevention program at issue in the case and the decision’s potential impact on other federal employment statutes see Epstein, Becker & Green’s September 7, 2011 Act Now Client Advisory.
As you may know, the authors of this blog are attorneys at Epstein Becker Green, a national law firm with approximately 300 lawyers practicing in ten offices throughout the U.S.
On July 19, 2011, Epstein Becker Green’s Jay P. Krupin testified before the National Labor Relations Board (NLRB) concerning the Board’s dramatic rulemaking proposals to modify the representation election process. The firm was one of only a handful of management-side firms invited to provide testimony on behalf of clients at this first-ever NLRB hearing.
Vigorously arguing against the proposed changes, Jay asserted, among other things, that the “blatantly pro-labor” proposals to shorten the pre-election period would significantly hinder employees’ ability to make informed decisions. Jay further admonished the Board for improperly usurping Congress’s power to change federal labor law, and reminded the Board that the legislature has specifically refused to act on the Employee Free Choice Act, which would have called for the changes that the Board now seeks to implement by fiat.
The placement of a large, inflatable rat balloon at an employer’s facility, a sight familiar to many urban dwellers, was upheld in a recent 3-1 decision by the National Labor Relations Board, which found that a union that had stationed the rat near a hospital in Florida to protest work being performed by a non-union construction contractor at the facility did not violate the federal law against secondary boycotts in labor disputes. Sheet Metal Workers International Association, Local 15 (Galencare, Inc. d/b/a Brandon Regional Medical Center), 356 N.L.R.B. No. 162 (2011). (PDF) But the war against this pesky vermin is far from over. The decision—which could still be appealed to the U.S. Court of Appeals—is fact-specific and leaves open alternative avenues to challenge the rat.
There are several types of secondary boycotts that are prohibited under Section 8(b)(4) of the National Labor Relations Act, varying as to both the means and ends of the union’s conduct. The type of boycott challenged in this case involved coercing or threatening any neutral or secondary person—employees, employers, customers or members of the general public—for the purpose of forcing or pressuring them to cease doing business with the primary employer, that is the employer with whom a union has a dispute. Applying a standard articulated in a decision (PDF) last year involving large union banners at the site of a labor dispute, the Board concluded that stationing the rat placed near the entrance to the hospital was not “confrontational” and therefore did not coerce or threaten anyone. Because the Board concluded the rat was neither threatening nor coercive, it concluded that the rat did not violate Section 8(b)(4).
The majority opinion, however, overlooks the extent to which the very purpose of the rat is to be confrontational. The whole point of placing a 16-foot tall, 12-foot wide rat in front of an employer’s workplace point is to ratchet up the pressure in a labor dispute with a symbol that is by its very nature large, confrontational and threatening. Otherwise, the union would stick to handbills and banners. In addition, evidence has been introduced in other cases from witnesses who have testified that the common understanding of the rat is that it is an equally confrontational substitute for traditional group picketing, which is prohibited against a secondary such as the hospital in this case, a way to accomplish the same objectives with fewer bodies. However, as the dissenting Board member recognized, the rat creates an “invisible picket line.” Indeed, the Board’s General Counsel, during the Bush Administration, pointed to an episode of The Sopranos as evidence that, in our culture, a rat at a worksite meant that there was a labor dispute.
Regardless of the outcome of this particular decision—which, even if not appealed, could certainly be revisited in the future with a different outcome under a different presidential administration—there remain several alternative ways to challenge the rat. The majority decision did not approve the use of the rat in all circumstances. Indeed, the decision several times stated that it found no coercion based on the size, location or features of the rat in this particular case, clarifying that “[i]t may be that the size of a symbolic display combined with its location and threatening or frightening features could render it coercive within the meaning of” the Act.
Further, there are other secondary boycott provisions that have been successfully employed in the past to MAKE the rat evidence of an unlawful object, that were not present in the recent case. For example, picketing that involves inducing or encouraging neutral employees not employed by the primary employer to stop working as a means of pressuring their neutral employer to cease doing business with the primary employer is unlawful. This is called “signal picketing.” This type of challenge is particularly apt when the rat is placed at a common worksite where more than one group of union employees are working or must enter the facility. There are countless examples of neutral union employees refusing to go to work or make deliveries when the rat appears, because for many unions and their members, the rat means just one thing: do not cross this picket line.
Prior to the recent decision, employers had experienced some success in knocking out the rat. (Labor Law and the Inflatable Rat). (PDF) Despite this recent setback, employers should not assume that they are stuck with the rodent if it appears in front of their place of business, but should instead remain vigilant, recording the facts and circumstances of the situation and consulting with counsel when the rat rears its ugly head.