Category Archives: National Labor Relations Board

NLRB: Targeting McDonald’s as ‘Joint Employer’

I suspect most of you have been following, to some extent, the fast-food worker protests of the past couple of years.

As recently as December 4, fast-food workers from around the country demonstrated in front of their restaurants, continuing their fight for a $15 an hour wage.

486860229Well, the latest update in the story came on Friday, when the National Labor Relations Board issued complaints against McDonald’s franchisees and their franchisor, McDonald’s USA, as a joint employers, alleging that they violated the rights of employees participating in the protests by making threats and retaliating against them.

Kendall Fells, organizing director of the Fight for 15, a group formed to advance the cause of a $15 living wage, told the Chicago Tribune that “McDonald’s exerts such extensive control over its franchised business operations that, for all intents and purposes, McDonald’s is the boss. It’s obvious that the company should share responsibility with franchisees for the treatment of its workers.”

The NLRB’s General Counsel, Richard Griffin, issued 78 charges against McDonald’s and its franchisees.

In response to the NLRB announcement, McDonald’s issued the following statement

“McDonald’s is disappointed with the Board’s decision to overreach and move forward with these charges, and will contest the joint employer allegation as well as the unfair labor practice charges in the proper forums.

These allegations are driven in large part by a two-year, union-financed campaign that has targeted the McDonald’s brand and impacted McDonald’s restaurants. McDonald’s has taken the appropriate measures, working properly with its independent franchisees, to defend itself against that attack on its business.

McDonald’s serves its 2,500 independent franchisees’ interests by protecting and promoting the McDonald’s brand and by providing access to resources related to food quality, customer service, and restaurant management, among other things. These optional resources help entrepreneurs operate successful businesses. This relationship does not establish a joint employer relationship under the law—and decades of case law support that principle.”

On Friday afternoon, I asked Marshall Babson, counsel in the New York and Washington offices of Seyfarth Shaw who served as a member of the NLRB from 1985 to 1989, for his take on the board’s move.

“I can’t imagine what evidence the general counsel at NLRB has to justify the issuance of the complaints, but for more than 50 years the general view has been that you can’t be a joint employer unless you’re an employer,” he said. “My understanding is that if you’re McDonald’s and most [other] franchisors, you don’t become engaged in the hiring and firing of these employees. You don’t set their wages, benefits, and terms and conditions of employment on a day-to-day basis. You don’t say that [someone] should be terminated for this or that. … So [the NLRB complaints] represent an extraordinary departure from the past.”

In the 40 years he’s been doing employment law, Babson said he doesn’t recall a single instance when an otherwise legitimate relationship has been challenged in this manner.

Babson said his advice to employers continues to be the same: If you’re an franchisor, keep focusing on brand integrity: What kind of uniforms people should wear and the way products should be prepared; and don’t act in the capacity of an employer.

“If it takes the Supreme Court or Congress to once again remind the board that the common-law definition of employer applies here, then [so be it],” he said. “But in the meantime, it’s unfortunate that this has the potential to disrupt long-term traditional business relationships.”

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About That NLRB Ruling

In a divided opinion yesterday, the National Labor Relations Board ruled that employees can use their company’s email system for the purpose of Section 7  union-organizing activities. The case was brought to the NLRB’s attention by the AFL/CIO, which brought a lawsuit against California-based Purple Communications over its policy banning employees from using company email for activities related to union organizing.

In ruling 3-2 in favor of the plaintiffs, the NLRB overturned its 2007 Register Guard decision, in which it gave companies the right to restrict employees’ use of company email for organizing purposes without eliminating their right to use work email for other personal purposes. The latest ruling is “responsive to the enormous technological changes that are taking place in our society,” the board wrote. The NLRB said its ruling is “carefully limited” and applies only to employees who have already been granted access to company systems for their own work. Employers are not required to let employees use work email for Section 7 activities, the Board wrote — indeed, it can ban work email from being used for these purposes during work- and non-work hours so long as it’s part of a total ban on non-work use of its email system.

However, Philip Miscimarra, one of the two board members who voted against the majority, said that technological advances mean that employees have plenty of electronic options other than company email for the purposes of union-related communication. “National uprisings have resulted from the use of social media sites like Facebook and Twitter,” he said.

Jeffery Meyer, a labor and employment attorney with Kaufman Dolowich & Voluck, says the ruling “opens the floodgates for a full attack on employer property rights.”

“What this decision does is to provide unions and employees with a legal foundation to argue that Section 7 rights now trump an employer’s property right in almost any circumstance,” Meyer writes in a brief on the ruling.

Employers should review and, if necessary, revise their policies on electronic devices and instruments to take advantage of the “caveats delineated in the Board’s decision,” he writes. Although it’s a drastic move, “strict yet clear prohibitions and/or controls on personal use of company email systems could prove to be the difference in an organizing campaign where the union might not otherwise be able to contact the entire workforce.”

A company’s failure to revise its policies “could provide unions with a very useful tool to organize their employees,” writes Meyer. “Purple Communications serves as concrete evidence that a union will not think twice to use an unlawful handbook policy to its advantage in order to seek a new election should the employer win the first go-round.”

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Microsoft CEO Touts Equal Pay after Apology

Satya_NadellaIt seems Microsoft Chief Executive Officer Satya Nadella (at right) is still in apologetic mode after making some ill-advised comments at a recent conference that, in essence, discouraged female employees from asking for raises.

Apologizing immediately afterward, Nadella now says in this Oct. 20 Time magazine online article, that men and women at Microsoft are paid equally. Clearly, the need for more positive spin is still there.

Here, in case you missed it, is Josh Eidelson’s Oct. 13 post on Bloomberg Businessweek‘s Politics & Policy site about whether Microsoft’s female employees have grounds for a complaint with the National Labor Relations Board, based on what Nadella said onstage at the recent Grace Hopper Celebration of Women in Computing Conference in San Francisco.

The post also mentions that Nadella apologized and retracted what he said just hours later in a companywide email, calling his gaffe “completely wrong.” For the record and according to Eidelson, here was his egregious response to a question someone at the conference posed about what he would tell women who are hesitant to ask for a raise:

“It’s not really about asking for the raise, but knowing and having faith that the system will actually give you the right raises as you go along. And that, I think, might be one of the additional superpowers that quite frankly women who don’t ask for a raise have. Because that’s good karma. It’ll come back, because somebody’s going to know that’s the kind of person that I want to trust. That’s the kind of person that I want to really give more responsibility to.”

Wilma Liebman, who chaired the NLRB during President Obama’s first term and now lectures at Cornell University, says in the post, “You could make a very clear argument that [such a comment] means, ‘Don’t ask for a raise, and if you ask for a raise, you’re not going to be trusted.’ And ‘you’re not going to be trusted’ translates to ‘you could be in some jeopardy.’ ”

The issue raised in the Businessweek piece, of course — since it considers NLRB review and possible enforcement of Section 7 of the National Labor Relations Act — is whether Nadella’s message explicitly chills a protected concerted activity; i.e., a group of Microsoft women banding together in search of higher pay.

Lawyers are mixed on that one. “If a group of women said these comments chilled them from seeking together to get better pay in the workplace, they could file an unfair labor practice claim with the NLRB,” Paul Secunda, director of the Labor and Employment Law Program at Marquette University Law School, is quoted as saying in that story.

On the other hand, the story says, Samuel Bagenstos, a University of Michigan law professor and former Department of Justice official, doubts Nadella’s comments would merit NLRB review, considering he didn’t specifically address that kind of group activism. “Asking for a raise for oneself only would count as concerted activity if there was an argument that the employee was asserting a grievance that was or could be expected to be shared by others,” Bagenstos is quoted as saying.

Hope B. Eastman, principal at Bethesda, Md.-based Paley Rothman and co-chair of its employment law group, who I spoke with about this, concurs. “The fact that Nadella has apologized and retracted his statement, and the fact that his comment was in the context of an individual woman asking for a raise,” she says, “makes it unlikely that the NLRB would take this on … .”

That said, she adds, “there have been studies suggesting that women do not negotiate salaries as well as men; this is an issue that needs attention.” So the silver lining, I guess, is that this issue was given new light through Nadella’s comments.

The Businessweek piece also brings up another story we followed in 2011 on this blog, when the NLRB issued a complaint against Boeing, claiming executives’ public comments about striking employees in the state of Washington suggested they were to blame for the company’s intended move to a new South Carolina site at the time. (Here’s one other mention of that story on this blog.)

As Eidelson points out, that Boeing story establishes “precedent for investigating public comments from an executive as alleged discrimination.”

And — aside from staying on that apparently long, arduous road toward equal pay — what’s the message for HR in all this? I guess check with your C-suiters on absolutely everything they intend to say publicly before they take the podium or stage …

If that’s even possible.

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Dangers of Social-Media Discipline

judge's gaveEmployers should be concerned by the National Labor Relations Board’s latest decision pertaining to social media and work. If not concerned, then taking very special note of, at the very least.

This ruling, as detailed thoroughly in this posting from Littler Publications, centers around employees’ off-duty social-media posts about work, and what employers can and can’t mandate about that.

In the ruling, as the posting puts it, the board came down hard on the employer — Triple Play (a.k.a., Triple D) Sports Bar and Grille in Watertown, Conn. — in that it “set a high bar for employers before they can terminate employees based on speech otherwise protected by Section 7 [of the National Labor Relations Act], determined that [a Facebook] ‘Like’ in that case was protected, reversed the employee’s firing and found a key provision in the employer’s social-media policy to be unlawfully overbroad.” I’d say that’s coming down hard.

The case has to do with several employees who were complaining in a Facebook discussion about a mistake they suspected the bar’s owners of making when calculating their state tax withholding. Some in the discussion were simply following the lines of the conversation. Here is Littler’s rendition of what transpired:

The owners organized a staff meeting with the payroll provider to discuss the issue. Before this meeting, Jamie LaFrance, a former employee who had recently left [her job] started a Facebook conversation by posting the following status update:

“Maybe someone should do the owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money…Wtf!!!!”

Several comments followed in which a customer and a current employee sympathized.

LaFrance continued by accusing the owners of making a mistake in calculating tax withholdings, and she expressed her intention to report the mistake to the state’s “labor board.” At that point, a current employee, Vincent Spinella, selected the “Like” option under LaFrance’s initial status update.

As the Facebook exchange continued, LaFrance verbally attacked one of the owners:

“Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.”

Another current employee, Jillian Sanzone, followed this statement by posting: “I owe too. Such an asshole.”  More comments followed, including a statement by another current employee that she planned to discuss the tax issue at a staff meeting.

After learning about the Facebook exchange from one of LaFrance’s Facebook friends, a current employee who happened to be the sister of one of the owners, the owners questioned Spinella about his “Like.”  They told Spinella that it was “apparent” he wanted to work somewhere else because he had “liked the disparaging and defamatory comments” and terminated his employment.

Spinella accused Triple D of illegal actions under the NLRA and the case came before the NLRB. Triple D argued that the disparaging comments and Spinella’s “Like” took the case outside the realm of the NLRA’s Section 7 protection as a concerted activity. The board, however, ruled otherwise because: Spinella did not specifically “like” any of LaFrance’s allegedly defamatory comments in and of themselves, the comments weren’t intended for public consumption on a private Facebook page and no one mentioned anything disparaging about the employer, per se, but related everything to an ongoing labor — i.e., tax withholding — dispute.

The NLRB also ruled this portion of Triple D’s social-media policy was too broad:

“[W]hen Internet blogging, chat room discussions … or other forms of communication extend to employees … engaging in inappropriate discussions about the company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment.  … In the event state or federal law precludes this policy, then it is of no force or effect.”

So what should you be concerned about exactly? Littler attorneys Philip Gordon and Zoe Argento offer these six takeaways in their post:

  1. Because a “Like” standing alone can be protected, employers should consider consulting with counsel before disciplining employees based on their selection of the “Like” button.
  2. When analyzing whether a “Like” is protected speech, employers should refer to the specific post or comment to which the “Like” relates.
  3. When analyzing whether otherwise protected social-media posts have crossed the line and lost their protection, the NLRB will apply different standards to disparagement of the employer’s products and services and defamation of the employer or members of its workforce.
  4. The actual malice standard applicable to defamatory statements imposes a heavy burden on the employer to prove that the employee posted content knowing it was false or it was made with reckless disregard for the truth.
  5. Employers should consult with counsel before firing an employee for allegedly defamatory or disparaging speech when that speech takes place in the context of a group discussion in social media.
  6. The NLRB continues to closely scrutinize social-media policies. Employers should recognize that language which is general or establishes subjective standards, such as “inappropriate discussion,” will raise a red flag for the board unless accompanied by examples that make it clear to a reasonable employee that the general language is not intended to encompass protected speech.  Relatedly, employers should expect the board to closely scrutinize any disclaimer before relying on it to “save” policy language from invalidation.  Such disclaimers have not been very helpful overall in terms of avoiding NLRB problems.

For your additional reading pleasure, and pointers, here are numerous blog posts we’ve written about social media in the workplace and social-media policies employers are drafting, should be drafting and shouldn’t be drafting in their attempts to control its impact.

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New Rulings Affect Labor Landscape

Mcdonalds rulingLabor unions saw a setback today with the just-announced ruling from the Wisconsin Supreme Court upholding that state’s law that effectively bans collective bargaining by state government employees. Unions nationwide have poured resources into contesting the law, which ignited a firestorm in Wisconsin when it was signed by Gov. Scott Walker three years ago.

But on a national scale, unions should be much happier about the recent ruling from the National Labor Relations Board’s general counsel, Richard F. Griffin Jr., that McDonald’s Corp. could be held jointly liable for labor and wage violations by its franchisees. Workers at various McDonald’s locations have alleged they were retaliated against after participating in strikes and demonstrations demanding higher wages. Griffin’s ruling, which will probably go before the five-member NLRB board and could possibly go as far as the U.S. Supreme Court, says McDonald’s is a joint employer along with its franchisees and therefore shares responsibility for the retaliatory measures allegedly taken against the employees. The NLRB found that of 181 cases filed against McDonald’s since late 2012, 43 cases have been found to have merit and that the Oak Brook, Ill.-based fast-food giant and its franchisees will be named as respondents if the parties cannot reach settlement, while 68 of the cases have been dismissed and 64 remain under investigation.

The ruling has the business community hopping mad — and that’s no surprise, considering that it has the potential to significantly alter the longstanding franchisor-franchisee business model and could make it easier for unions to organize hourly workers at national retail and restaurant establishments.

The following statement from Angelo Amador, vice president of labor and workplace policy at the National Restaurant Association, reflects what many others in the business community are saying about the ruling:

The ruling … asserting that McDonald’s Corp. is a ‘joint employer’ of its franchisees’ employees overturns 30 years of established law regarding the franchise model in the United States, erodes the proven franchisor/franchisee relationship and jeopardizes the success of 90 percent of America’s restaurants who are independent operators or franchisees.”

Heather Smedstad, senior VP of human resources for McDonald’s USA, said in a statement that “this decision to allow unfair labor practice complaints to allege that McDonald’s is a joint employer with its franchisees is wrong. McDonald’s will contest this allegation in the appropriate forum.”

But proponents of the ruling say McDonald’s actually exercises significant control over its franchisees’ employees, requiring them to abide by an extensive list of rules and regulations and even providing the franchisees with software that helps them determine staffing levels for specific times of the day. Here’s what Micah Wissinger, an attorney who represents McDonald’s workers in New York, told the Society for Human Resource Management:

McDonald’s can try to hide behind its franchisees, but today’s determination by the NLRB shows there’s no two ways about it: The Golden Arches is an employer, plain and simple. The reality is that McDonald’s requires franchisees to adhere to such regimented rules and regulations that there’s no doubt who’s really in charge.”

Former NLRB chairwoman Wilma Liebman told the New York Times that the decision “could give fast-food workers and labor unions leverage to get McDonald’s to negotiate about steps that would make it easier to organize McDonald’s restaurants.”

It’s clear we now have yet another NLRB action that’s once again galvanized the business community in opposition. Considering the sheer number of employees who work for franchisees, along with the record number of temps and contractors in the U.S. workforce today, the ultimate fate of this ruling will be very closely watched .

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Supremes Invalidate NLRB Recess Appointments

Noel CanningThe U.S. Supreme Court dealt a setback to President Obama today when it ruled that he had violated the Constitution when he appointed officials to the National Labor Relations Board while the Senate was in a recess period, meeting on a “pro forma” basis every three days. The court ruled that a 72-hour period is not long enough for a “recess appointment” — however, a recess of 10 or more days is sufficient for such appointments, it said.

Obama made his three recess appointments to the NLRB in 2012 after Senate Republicans had repeatedly blocked his nominees while the Senate was in session (and preventing the NLRB from achieving a quorum in the process). Bottling company Noel Canning challenged the validity of those appointments when it appealed an NLRB ruling that found the company had engaged in an unfair labor practice by refusing to enter into a collective-bargaining agreement. Noel Canning’s lawyers argued that the ruling was invalid because the board members had not been properly appointed. A federal appeals court sided with the company. (My colleague Kristen Frasch has been following this controversy closely.)

What will the Supreme Court’s decision mean for employers? The NLRB will now most likely have to review hundreds of rulings made by the previous board that have since been invalidated by Noel Canning. Many of those decisions were considered excessively pro-employee and anti-employer. However, things could get worse for companies in the wake of today’s ruling, write BakerHostetler employment attorneys Mike Asensio and Jeremiah Hart, who note that today’s properly constituted NRLB has shown that it will follow the labor policy of previous Boards and will most likely rubber-stamp many of the previous decisions invalidated by Noel Canning:

It is not a certainty that the NLRB will simply rubber stamp the decisions invalidated by Noel Canning, however. Noel Canning gives the current NLRB an opportunity to further push its employee- and labor-friendly agenda. In the wake of Noel Canning, the Board will now have to reissue hundreds of decisions and could, if it desired, make those decisions more protective of employee rights. Typically, the Board would have to wait years for these issues to work their way through the litigation process. The Board now has the opportunity to significantly contribute to the employee-friendly labor law agenda of the Boards of recent past in a very short amount of time.”

In other words, if you thought things were tough for employers at the NLRB before, it’s possible you ain’t seen nothin’ yet. And, while today’s ruling was clearly a setback for Obama, things could’ve gone much worse for him had the four most conservative Justices had their way, writes Venable LLP’s John Cooney, a former assistant to the Solicitor General and deputy general counsel at the Office of Management & Budget:

In reality, there was a sharp disagreement division between the 5 Justices who signed Justice [Stephen J.] Breyer’s opinion, including Justice Kennedy, and 4 Justices who would have greatly limited the President’s Recess Appointment power … These 5 Justices held that the President can make recess appointments during any recess of the Senate of sufficient length. … The four conservative Justices who did not join Justice Breyer’s decision would have substantially curtailed the President’s recess appointment power, in a manner that would have deprived this power of much of its historical significance.”

Obama made his recess appointments after having been stymied by the opposition party in the Senate. However, as Justice Breyer wrote in the majority opinion: “The recess appointments clause is not designed to overcome serious institutional friction. Friction between the branches is an inevitable consequence of our constitutional structure.”

 

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Still Time to Chime in on NLRB’s Email Decision

99274052--gavel and hourglassYou still have time to offer input into a National Labor Relations Board decision that bars employees from using their employer’s email for union-organizing purposes, according to this notice from the Society for Human Resource Management.

The NLRB invited briefs back on April 30 pertaining to its interest in reconsidering its decision in the Register Guard case. Even if you missed it, you have until June 16 to submit your position in writing.

For background, here is an earlier synopsis of the initial ruling from Littler and here, from the National Legal and Policy Center, via the Before It’s News website, is an even-more-detailed one, with history and background on other cases that impact this one. It notes that, in 2007 …

… by a 3-2 margin along party lines [with the three Republicans forming the majority], the NLRB concluded that a Eugene-Ore.-based newspaper, The Register Guard, owned by Guard Publishing Co., was within its rights in stipulating that its e-mail and other employee-communications systems ‘are not to be used to proselytize for commercial ventures, religious or political causes, outside organizations, or other non-job-related solicitations.’ Management, concluded the board, had the authority to apply that rule to an affiliate of the Communications Workers of America to which a number of newsroom employees belonged. The majority opinion held [that]: ‘[E]mployees have no statutory right to use the[ir] employer’s e-mail system for Section 7 purposes.” The ruling, however, wasn’t a complete victory for the employer. It held that Guard Publishing’s disciplinary action against an employee-CWA representative was unlawful to the extent that it punished that person’s purely informative [as opposed to advocacy] use of company e-mail. The board remanded the case to a District of Columbia circuit court, which upheld the ruling [Guard Publishing v. NLRB, 571 F.3d 53 — D.C. Cir. 2009].”

Not surprisingly, there are politics involved, according to the NLPC:

Its partial victory notwithstanding, organized labor has been smarting over Register Guard these last several years. All the more frustrating, from their standpoint, is the fact that the ruling was handed down on the last day in office of then-NLRB Chairman Robert Battista, a Republican. With a 3-2 Democratic majority since last summer — after more than a half-decade of operating short-handed — plus the guidance of pro-union current General Counsel Richard Griffin, a reversal is now within their grasp.”

If the NLRB reverses its decision, “which is likely given its current 3-2 pro-union majority,” the NLPC says, “it would be handing unions a potent organizing tool, and more broadly, restricting employer property rights.”

If you’re really in an amicus-brief-submitting frame of mind, here is another invitation to submit briefs to the NLRB. In this case, the board is inviting briefs “to afford the parties and interested amici the opportunity to address [its] joint-employer standard, as raised in Browning-Ferris Industries (Case 32-RC-109684).

Among the issues raised by the NLRB in this one is whether the parties and amici believe the NLRB should adhere to its existing joint-employer standard or adopt a new standard. Those briefs are due on or before June 26.

 

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Careful on the Employee-Conduct Stuff

If you’re thinking of putting anything “official” out to your employees — i.e., in writing — saying you expect them to act in a positive and professional manner, and represent your Gavel and Paperscompany well …

… well … better think again.

Earlier this month, the National Labor Relations Board ruled that Cass City, Mich.-based Hills and Dales General Hospital violated federal law — i.e., the National Labor Relations Act — by establishing new work rules prohibiting negative comments and requiring all workers to represent the hospital “in the community in a positive and professional manner.”

This legal alert from Ballard Spahr calls the decision “the latest in a trend of rulings showing the NLRB’s aversion to what it views as overly broad employer policies.

The facts of the case, Hills and Dales General Hospital, are pretty interesting and might arouse some “there but for the grace of God go I” thinking among you. The acute-care hospital was wrestling with some pretty negative behavior on the part of employees that was responsible for a loss of customers, including back-biting, back-stabbing and gossiping. The hospital, wanting everyone involved in turning this problem around, sent its proposed Values and Standards of Behavior policy to all employees for comment. Then it issued the new policy to showcase the new culture.

Here were the clauses the NLRB didn’t like:

Teamwork

11. We will not make negative comments about our fellow team members and we will take every opportunity to speak well of each other.

16. We will represent Hills & Dales in the community in a positive and professional manner in every opportunity.

Attitude

21. We will not engage in or listen to negativity or gossip. We will recognize that listening without acting to stop it is the same as participating.

Indeed, the board concurred with an administrative law judge who ruled prohibiting “negative comments” and “negativity” violated workers’ rights to engage in protected, concerted activity. And the fact that employees were involved in the drafting of the new rules mattered not to the NLRB. It found, according to the alert, “that the rules were unlawfully broad and ambiguous on their face, and that ‘employees might well endorse an unlawful rule, knowingly or not, but their consent or acquiescence cannot validate the rule.’ ”

Ballard Spahr partners Mary Theresa Metzler and Alexandra Bak-Boychuk, who authored the alert, say employers “should continue to take great care when drafting or issuing employee handbooks and policies to avoid overly broad restrictions [such as this hospital’s] that might violate the NLRA.”

Specifically, Bak-Boychuk told me directly:

While it’s difficult to predict what will happen next, I generally expect that the board will continue down the same path, meaning interpreting employee Section 7 [of the NLRA] rights [to organize, in a protected concerted activity] in a pretty broad way. I think we will continue to see close scrutiny of employer handbooks and policies, down to a granular level. In this case, for instance, one of the board members offered an opinion on the prohibition of ‘gossip,’ which wasn’t even at issue in the case.”

Speaking specifically to the Section 7 concern, the NLRB ruling, linked above, states that:

… paragraph 11 of the hospital’s policy is unlawful because employees would reasonably construe the language of the rule to prohibit Section 7 activity. Although the rule does not explicitly restrict Section 7 activity and the Acting General Counsel did not offer evidence that the hospital made statements or engaged in conduct that linked the rule to such activity, paragraph 11 implicitly includes protected activities because it prohibits negative comments about managers.”

You stand warned.

 

 

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No Notice Required

courtroomYou’re always welcome to remind employees of their right to form a union, but it looks like you won’t have to if you don’t want to.

According to a statement issued by the National Labor Relations Board this week, the organization has chosen not to seek Supreme Court review of two U.S. Court of Appeals decisions invalidating the NLRB’s Notice Posting Rule, which would have required most private sector employers to post notifications in the workplace reminding employees of their right to unionize.

In August 2011, the National Labor Relations Board approved a rule obliging employers to display a poster informing workers of the rights afforded to them by the National Labor Relations Act, including the right of employees to organize and bargain collectively with their employers. A three-judge panel for the U.S. Court of Appeals for the D.C. Circuit struck down the rule in May 2013, with another panel for the Fourth Circuit doing the same the following month. The NLRB had until last week to file an appeal to the U.S. Supreme Court, which the agency ultimately decided against doing.

That decision was “not unexpected,” says Ronald Meisburg, the Washington, D.C.-based co-head of Proskauer’s labor management relations group and former NLRB general counsel.

“The chance of obtaining Supreme Court review—much less reversal—was very small,” says Meisburg, “and carried the risk of a ruling placing even greater restrictions on the NLRB’s rulemaking authority.”

This development figures to go down well with many business groups, some of which had accused the NLRB of overstepping its bounds in its efforts to make posting the notifications mandatory. Associated Builders and Contractors Inc., for example, had previously described the posting rule as “a perfect example of how the pro-union board has abandoned its role as a neutral enforcer and arbiter of labor law.”

The National Association of Manufacturers, meanwhile, quickly issued its own statement on the heels of the NLRB’s announcement that it wouldn’t seek Supreme Court review in the posting requirement rule case. In a press release, the organization states the NLRB “has acknowledged its overreach in the case, permanently validating the NAM’s victory.”

“This is the culmination of the NAM’s aggressive legal pursuit against a government-imposed regulation that would create a hostile work environment while injecting politics into manufacturers’ day-to-day business operations,” said Jay Timmons, NAM president and CEO.

Nevertheless, the NLRB appears to remain undaunted in its effort to make employees aware of their right to unionize.

In the aforementioned statement, the agency reiterated its commitment to “ensuring that workers, businesses and labor organizations are informed of their rights and obligations under the National Labor Relations Act. Therefore, the NLRB will continue its national outreach program to educate the American public about the statute.”

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There’s A Lot Goin on With Labor This Labor Day

On the heels of Michael J. O’Brien’s blog post below on the growing numbers of over-connected workers celebrating Labor Day this coming Monday, I thought it would also be fitting to call labor union - 164548731attention to the current state of flux — for lack of a better word — involving labor unions as well.

Indeed, there is much to keep your eyes on — this Labor Day and beyond. Here are three developments I thought worthiest, from most recent to least, though they’re all pretty recent and they seem to keep coming:

1) On Aug. 15, the U.S. Court of Appeals for the Sixth Circuit upheld the National Labor Relations Board’s decision in Specialty Healthcare and Rehabilitation Center of Mobile, affirming that the NLRB has broad discretion to determine appropriate bargaining units for union representation elections, including narrow so-called “micro-units.” (Paul Salvatore, our legal columnist, mentioned such micro-units in this recent column.)

This alert from Littler lays it out pretty completely and spells out toward the end what should be of concern to employers:

Targeting smaller groups within an employer’s workforce provides labor unions with a great deal of flexibility. Such groups may be more susceptible to organizing activity than the larger, traditional employee complement that would have been included in a proposed bargaining unit under the [NLRB’s] prior standard.  While it is expected that the board and courts will continue to refine the application of Specialty Healthcare in the coming years, employers should be aware that a finding of an appropriate “micro-unit” will be very difficult to avoid in most employer operations.

2) On Aug. 13, U.S. District Court Judge Benjamin H. Settle entered a ruling in favor of an employer based, in part, on what he deemed to be an invalid appointment of the NLRB’s acting general counsel, Rafe Solomon. Specifically, he granted an employer’s motion to dismiss a lawsuit in which the NLRB sought an injunction against the employer based on accusations that the employer was terminating its employees for engaging in protected activity.

In its motion to dismiss, the employer argued (1) only the NLRB has the authority, after issuing an unfair labor practice complaint, to petition a federal court for injunctive relief, and the NLRB did not at that time have a quorum of three lawfully appointed members; and (2) the NLRB could not lawfully delegate its authority to Solomon because Solomon’s own appointment was also invalid.

This rundown, also from Littler, spells out what the impact and ramifications of this may be, including the fact that the decision “will likely prompt a strong response among employers currently facing unfair labor-practice litigation before the NLRB. The validity, or lack thereof, of Solomon’s appointment will provide an additional affirmative defense for employers.”

3) Lastly, we’re all keeping our eyes on the development I blogged about last month, involving the growing swell of discontent unions seems to be having over the Affordable Care Act. Specifically, three sizeable unions — the Teamsters, UNITE-HERE and the United Food and Commercial Workers — sent a joint letter in mid-July to Democratic congressional leaders blasting the very same healthcare-reform plan they once lauded.

The main gripe — directed to Senate Majority Leader Harry Reid and Minority House Leader Nancy Pelosi by Teamsters President James P. Hoffa, UFCW International President Joseph Hansen and UNITE-HERE President Donald “D” Taylor — is that no one on Capitol Hill seems to be listening to the unions’ fears that the massive reform bill could put an end to nonprofit health-insurance plans “like the ones in which most of our members participate,” as the letter states.

Again, much to mull and keep abreast of. We’ll be addressing these and many more aspects of the state of unions today in an upcoming news analysis on our HREOnline website, so watch for that as well.

And Happy (or at least a highly interesting) Labor Day!

 

 

 

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