By Adam C. Abrahms and Steven M. Swirsky

In another major defeat for President Obama’s appointees to the National Labor Relations Board (NLRB or Board), the US Court of Appeals for the DC Circuit found that the Board lacked the authority to issue a 2011 rule which would have required all employers covered by the National Labor Relations Act (the “Act”), including those whose employees are not unionized, to post a workplace notice to employees. The putative Notice, called a “Notification of Employee Rights Under the National Labor Relations Act,” is intended to ostensibly inform employees of their rights to join and be represented by unions and to engage in other activity protected by the Act. The rule would also have made it an unfair labor practice for an employer to fail to post the required notice and such failure also could be considered proof of anti-union animus in other Board proceedings.

Although proposed in 2011 and scheduled to become effective on April 30, 2012, the requirement has yet been put into effect. As we discussed previously, last year, the US District Court for the District of Columbia had held that the Board lacked the authority to make it an unfair labor practice for an employer to fail to post the notice, holding that this exceeded the Board’s authority under the Act. Just prior to the rule going into effect, the DC Court of Appeals issued an emergency injunction in support of the District Court’s opinion and the NLRB opted to not enforce the rule pending the appeal.

Perhaps what is most noteworthy about the Court’s recent opinion, authored by Senior Circuit Judge Randolph, is the Court’s reliance on employers’ free speech rights which are protected by Section 8(c) of the Act. That section of the Act ensures employers the right to communicate their views concerning unions to their employees. The Court noted that while Section 8(c) “precludes the Board from finding non coercive employer speech to be an unfair labor practice, or evidence of an unfair labor practice, the Board’s rule does both.” That is because under the rule an employer’s failure to post the required notice would constitute an unfair labor practice and the Board’s rule would have allowed the Board to “consider an employer’s ‘knowing and willful’ noncompliance to be ‘evidence of anti union animus in cases in which unlawful motive [is] an element of an unfair labor practice.”

The Court focused on the question of the right of employers to “free speech,” under both Section 8(c) of the Act and under the First Amendment to the Constitution, noting that the rule would have required employers to disseminate information and that “the right to disseminate another’s speech necessarily includes the right to decide not to disseminate it,” relying on analysis from prior Supreme Court and appellate court decisions which it referred to as “compelled speech” cases.

Interestingly, the Court’s conclusion that the Board’s rule violates Section 8(c) because it makes an employer’s failure to post the Board’s notice an unfair labor practice, and because it treats such a failure as evidence of anti-union animus, suggests the Board might be able to find an alternate route to a notice posting requirement if it did not seek to create such a remedy for an employer’s failure to post the notice. However, the Court refused to leave the portion of the Board’s rule requiring the Notice posting in effect even without the enforcement and remedial provisions, because they were an inherent part of the Board’s purpose in adopting the rule. For now the beleaguered Board will need to decide whether it wishes to appeal this decision to the Supreme Court, attempt to craft a new rule with the currently constituted Board that this same Court of Appeals has ruled was unconstitutionally appointed in its Noel Canning decision or postpone any action until a new Board is confirmed by the Senate.

By: Jill Barbarino and Steven M. Swirsky

In a recent decision involving social media posts by non-union employees, as well as employer rules prohibiting the sharing of information about compensation among co-workers and with non-employees, the NLRB affirmed the findings and proposed remedy recommended by a Board Administrative Law Judge,  holding that the Facebook posts of three employees of an upscale clothing boutique in San Francisco constituted protected activity under Section 7 of the National Labor Relations Act and the termination of the employees’ for the posts was an unfair labor practice under Section 8(a)(1) of the Act.

Significantly, a unanimous three member panel found that the Facebook posts were a “continuation” of the employees’ effort to present their concerns about safety and other working conditions to their employer, the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns,” and even without the related activity of the employees at work, “the Facebook postings would have constituted protected activity in and of themselves.”

Not only did the Board order the employer to rescind the portions of its employee handbook that the Board found violated the Act as it applied at the location where the charging party and her co-workers had been employed, the Board also agreed with the General Counsel that the employer be ordered to rescind and replace the rules in question on a company-wide basis, explaining why it was doing so to all of its employees.

The employer, Design Technology Group, LLC, d/b/a Bettie Page Clothing, is a wholesale and retail clothing sales company with operations in several states, including an upscale women’s clothing store in San Francisco. Shortly after that store opened, an employee, Holli Thomas, asked both the owner of Bettie Page and the store’s manager, whether the store could close at 7 p.m. instead of 8 p.m. because employees working late at night were being harassed by people on the street after tourists had left the neighborhood and were concerned about their safety. Following a disagreement with the store manager about the request, Thomas, and two other employees, Vanessa Morris and Brittany Johnson, engaged in the following conversation on Facebook:

Holli Thomas – needs a new job. I’m physically and mentally sickened.

Vanessa Morris – It’s pretty obvious that my manager is as immature as a person can be and she proved that this evening even more so. I’m am [sic] unbelievably stressed out and I can’t believe NO ONE is doing anything about it! The way she treats us in [sic] NOT okay but no one cares because everytime [sic] we try to solve conflicts NOTHING GETS DONE!!

Holli Thomas – bettie page would role over in her grave.

Vanessa Morris: She already is girl!

Holli Thomas – 800 miles away yet she’s still continues our lives miserable. Phenomenal!

Vanessa Morris – And no one’s doing anything about it! Big surprise!

Brittany Johnson – “bettie page would roll over in her grave.” I’ve been thinking the same thing for quite some time.

Vanessa Morris – hey dudes it’s totally cool, tomorrow I’m bringing a California Worker’s Rights book to work. My mom works for a law firm that specializes in labor law and BOY will you be surprised by all the crap that’s going on that’s in violation 8) [sic] see you tomorrow!

Six days after the posts, Thomas and Morris were terminated. Johnson was terminated about a month later.

The Board agreed with the ALJ that Thomas and Morris were engaged in “protected concerted activity when they presented concerns of the employees about working late in an unsafe neighborhood to their supervisor and to the Respondent’s owner and that their Facebook postings were a continuation of that effort.”

The Board went even further to hold that “the Facebook postings would have constituted protected concerted activity in and of themselves” because the postings were “complaints among employees about the conduct of their supervisor as it related to their terms and conditions of employment and about management’s refusal to address the employees’ concerns.”

Finally, the Board held that the conversation about looking at a book relating to California labor law was “classic concerted protected activity” because the conversation related to the “mutual aid and protection” of employees.

The Board also rejected Bettie Page’s argument that the posts were a scheme to entrap Bettie Page into firing them. The Board stated that this argument lacked evidentiary support and even if the employees had posted the comments in the hope that they would be discharged, Bettie Page failed to establish that such conduct was not protected activity under the Act.

In addition, the Board agreed with the ALJ that the provision in Bettie Page’s handbook stating that “[d]isclosure of wages or compensation to any third party or other employee is prohibited and grounds for termination” should be rescinded.  The Board also ordered Bettie Page to post a company-wide notice regarding the unlawful handbook provision because the policy had applied not only to Bettie Page’s San Francisco store at issue in the case, but to all other store locations.

This decision evidences the Board’s recent, aggressive approach to social media posts of employees discussing workplace concerns, as well as the application of the NLRA to non-union employees.

In deciding whether to terminate, discipline, or take adverse action against an employee for social media postings, employers must carefully review whether the employee’s conversations, comments, or posts may constitute protected concerted activity under the NLRA.

Click here for additional information on the Board’s position on social media issues.

by: Adam C. Abrahms, James S. Frank, Kara M. Maciel, and Steven M. Swirsky

President Obama has taken action designed to bolster the National Labor Relations Board’s continuing move to bolster unions and take the National Labor Relations Act further into non-union workplaces. On April 9, 2013, President Obama announced his plan to submit three more nominees to serve the National Labor Relations Board (“NLRB”). If these and the two other pending nominations are confirmed this would bring the NLRB to its full complement of five Members.

These new nominations – who must be confirmed by the U.S. Senate – were announced against the backdrop of the NLRB v. Noel Canning decision in which the U.S. Court of Appeals for the D.C. Circuit ruled that the NLRB now lacks constitutional authority to act because the recess appointments previously made by President Obama in January 2012 were not valid. The NLRB plans to appeal the D.C. Circuit’s decision to the U.S. Supreme Court by April 25, 2013.

The three new nominations include the current NLRB Chairman, Mark Gaston Pearce, and two Republicans, Harry I. Johnson, III, and Philip A. Miscimarra, both lawyers in private practice. While Mr. Johnson and Mr. Miscimarra both have represented management over their careers, Chairman Pearce came to the NLRB from a practice representing unions.

Mr. Pearce has served as NLRB Chairman since August 2011, and has been a Board Member since March 2010. Previously, Mr. Pearce, who started his career at the Board’s Buffalo, New York Regional Office in 1979, was a founding partner of Creighton, Pearce, Johnsen & Giroux from 2002 to 2010. Before founding the Creighton, Pearce firm, Mr. Pearce worked as an associate and junior partner at Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria LLP from 1994 to 2002.

Harry I. Johnson, III is a partner with Arent Fox LLP. Previously, Mr. Johnson worked at Jones Day from 1994 to 2010. Mr. Johnson received a B.A. from Johns Hopkins University, an M.A.L.D. from Tufts University’s Fletcher School of Law and Diplomacy, and a J.D. from Harvard Law School.

Philip A. Miscimarra is a partner with Morgan Lewis & Bockius LLP, a position he has held since 2005. Since 1997, Mr. Miscimarra has also been a senior fellow at the University of Pennsylvania’s Wharton Business School. Mr. Miscimarra received a B.A. from Duquesne University, an M.B.A. from the University of Pennsylvania’s Wharton School of Business, and a J.D. from the University of Pennsylvania Law School.

President Obama previously submitted the nominations of Richard F. Griffin, Jr. and Sharon Block, who are currently serving as Board Members but whose recess appointments were struck down as invalid by the D.C. Circuit in Noel Canning. Member Block came to the NLRB from the US Department of Labor. Both of those nominations are before the Senate.

WHAT EMPLOYERS SHOULD DO NOW

Considering that all five nominations must now be confirmed by the Senate, where the Republican minority has frequently blocked the President’s nominations, it is unclear how and when the Senate will respond, and whether the NLRB will enjoy a full complement of Members in order to conduct lawful business any time soon. Merely announcing the nominations will not pave the way immediately for a full, validly appointed NLRB. Indeed, it may not be until the next Congress, following the 2014 mid-term elections that the Senate even considers a package deal with the White House.

If a compromise could be achieved and all five Members were sworn-in this year or next, the Board would continue with a liberal, union-friendly majority with Chairman Pearce and Members Griffin and Block. They could be expected to continue a pro-union agenda, which would certainly bring continued aggressive enforcement and further broadening of the Board’s view of protected, concerted activity and the Act’s application in non-union workplaces. Moreover, there will be many questions about whether a new NLRB will be able to cure prior decisions that were put into doubt by Noel Canning.

For now, our advice and recommendations to employers remains the same as following the ground-breaking decision of Noel Canning. Employers should closely monitor how courts in their jurisdictions decide similar cases challenging the recess appointments, and watch how the Supreme Court will address it next term, should it take the NLRB’s petition for certiorari, while watching to see what happens in the Senate.

The April 2013 issue of Take 5 was written by David W. Garland,  Chair of Epstein Becker Green’s Labor and Employment Steering Committee and a Member of the Firm in the New York and Newark offices.

In it, he summarizes five recent labor and employment actions that employers should consider:

  1. EEOC Releases Letter Addressing Wellness Programs and Reasonable Accommodation Obligations
  2. Paying Interns May Not Be Enough to Stave Off Wage and Hour Claims
  3. House Committee Votes Out Bill Prohibiting NLRB from Acting Without a Quorum
  4. New York City Human Rights Law Expanded to Prohibit “Unemployment” Discrimination
  5. New Jersey May Become the Latest State Law Banning Employers from Requesting Social Media Passwords

Click here to read the full version on ebglaw.com

by Adam C. Abrahms

Continuing its effort to “outreach” to non-union employees and educate them on their rights under the National Labor Relations Act, the NLRB has launched a new webpage on Concerted Activity.  The NLRB’s announcement  of its new webpage made clear the page is designed to inform employees of their rights “even if they are not in a union.”

The webpage, in addition to giving basic descriptions of concerted activities, asserts that “The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union.”  The main feature of the webpage is an interactive map of the United States which highlights cases from various regions as examples of the Board’s activities on behalf of non-union employees who were engaged in activity the Board considers protected even though it is unrelated to union organizing.  Examples include cases involving employees complaining about safety issues, employees posting statements on Facebook and videos on YouTube critical of the employer, employees discussing workplace issues with the news media, employees “violating” an employer handbook’s unlawful confidentiality policy and employees  signing letters to management complaining about wage cuts.

The new webpage is part of the NLRB’s concentrated effort to inform non-union employees of the rights protected by the Act and the availability of the agency as a resource to employees who feel they had their rights violated.  This new webpage should be viewed in the same vein as the Board’s parallel efforts to require all employers to post  a “Employee Rights Notice Posting,” print and distribute brochures and bring media attention to its aggressive pursuit of cases involving employers’ social media policies.  While the posting requirement has been enjoined by the U.S. Court of Appeals, the other more informal efforts of education and outreach like the webpage, brochures and media attention cannot be challenged and are likely to continue to expand.

In announcing the new webpage NLRB Chairman Mark Gaston Pearce made the agency’s goal clear, stating:

A right only has value when people know it exists…  We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act, and more important than ever in these difficult economic times. Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.

Given the NLRB’s continuing efforts, employers must be more mindful than ever that their policies and actions could be scrutinized by an aggressive National Labor Relations Board even if they do not have a union.  As the agency’s efforts continue, employers should expect more employees to be aware of their option to bring complaints to the Board for adjudication.  When employees do so, employers can also expect for the agency’s investigation to reach not only the specific incident involving the complaining employee but potentially the lawfulness of the employers’ general policies and procedures.  Either way, employers must consider whether their policies and actions impact or interfere with protected concerted activity even where there is no union present.

by James S. Frank, Steven M. Swirsky, Adam C. Abrahms, Donald S. Krueger, and D. Martin Stanberry 

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.

Read the full advisory online

by Steven M. Swirsky and Michael F. McGahan

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.

 Read the full advisory online

by David D. Green, Frank C. Morris, Jr., Allen B. Roberts

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.

Read the full advisory online

by Anna A. Cohen

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.

by Steven M. Swirsky and Michael F. McGahan

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.

Read the full advisory online