Facebooking Misappropriated Employer Form Is Not Protected Activity 2018-07-17T14:41:32-06:00

Posted on July 17, 2018

On June 11, 2018, the National Labor Relations Board (Board) Division of Advice applied the Board’s new Boeing standard for assessing employer policies. The Division advised that an employer did not violate the NLRA when it discharged a pro-union employee who Facebooked a form that was “improperly taken” from a team leader’s desk. Kumho Tires, 10-CA-208153 (July 13, 2018)

The employer was in the middle of a union-organizing drive and had been fighting rumors that it paid managers bonuses to fight the union. One employee took a bonus-request form from a team leader’s desk. The form seemed to be asking for a bonus for the team leader’s anti-union efforts. The employee gave a copy of the form to a second union supporter. The second union supporter posted the form to a private, union supporting Facebook group. The employer discharged the second union supporter for violating the employer’s social media policy.

Under the recent Boeing standard, if the rule is not even reasonably interpreted as restricting NLRA rights, the rule is lawful. Here, the work rule ordered “Maintain the confidentiality of the Company’s trade secrets and private or confidential information,” and it called out “internal reports, policies, procedures, or other internal business-related confidential communications” as well as trade secrets. The Division advised that the work rule was lawful because it did not explicitly refer to employees, their terms and conditions of employment, or any other NLRA-covered communications. The Division also advised that, although the Facebooker was engaged in protected concerted activity, he forfeited that protection. Posting the documents was “such disloyalty” that it fell outside the NLRA’s protection. The union supporter knew that the form had been wrongly procured.

Note: Reason is enjoying a revival at the Board. But note also: If the employees had only repeated the information readily viewable on the Team Leader’s compensation form, and had not copied it, all their discussion about the form – including that the employer was paying bonuses and, besides, that the employer was rolling in cash and could afford to increase wages – would have been protected under the NLRA. Try to put confidential information away.

This blog post has been picked up by the Employment Law Daily Newsletter.

Trump Board Trashes “Biggest Idiot” Test 2017-12-15T14:35:57-07:00

Posted on December 15, 2017

By Bernie Siebert

The Trump Board quickly jumped on the Obama Board’s seeming obsession with otherwise innocuous employee policies and handbook provisions. The Boeing Company. We have repeatedly blogged about the Obama Board’s “biggest idiot” theory as applied to handbook provisions. Rather than reviewing handbook policies to see whether a reasonable person might interpret them to unlawfully prohibit protected concerted activity, the Obama Board seemingly reviewed the policies from the perspective of the biggest idiot in the workplace. The Trump Board recognized the extreme hardship this put on both Employers and Employees, leaving both groups to guess at what was permitted versus prohibited conduct. Overruling Lutheran Heritage Village Livonia, the Trump Board ruled that in evaluating whether a rule potentially interferes with an NLRA right, “the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the requirement(s).” The Board majority described three categories of policies. The Board will: (1) uphold rules that, when reasonably interpreted do not ban protected conduct, or that do ban protected conduct but a business justification outweighs the potential impact on protected conduct; (2) individually scrutinize rules that, when reasonably interpreted, appear to ban protected conduct and weigh the value of the protected conduct against the business justification for the rule; and, (3) strike down policies that, when reasonably interpreted, appear to ban protected activity and the value of the activity outweighs the business justification. So, say “hello” to your employee handbook, and “goodbye” to your biggest idiot!

Racist Picket Conduct Protected 2017-08-09T16:16:42-06:00

Posted on August 9, 2017

By Bill Wright

The NLRB holds – famously now – that sexist and racist conduct on a picket line is protected from adverse action unless the conduct is also violent and coercive. Despite a shot across its bow in Consolidated Communications, Inc. v. NLRB, (D.C. Cir. 2016), the Board continues to force employers to ignore sexist and racist conduct, and the courts continue to defer to the NLRB on the issue.

In Cooper Tire & Runner Co. v. NLRB, No. 1602721 (8th Cir. August 8, 2017), a picketer yelled racist comments at a van carrying strike-breaking workers. Some number of the strike breakers were African American, and the picketer yelled references to fried chicken and watermelon. When the strike and lockout ended, the company did not hire the picketer back, citing his conduct as unrelated to the picketing activity. An arbitrator found the termination to be for good cause, but the NLRB disagreed, overruled the arbitrator, and found an unfair labor practice. The court agreed with the board. The picketer had his hands in his pockets, and there was no evidence the employees in the van heard the comments or felt threatened or coerced.

The call for the NLRB to recognize public standards of employee civility, even in strike conduct, grows however. In Consolidated Communication, the criticism of the Board’s policy came in a concurring opinion. In Cooper Tire, Sr. Judge C. Arlen Beam dissented altogether. Judge Beam called for the NLRB to recognize that “the racial epithets expelled by [the picketer] were not simply tolerated, impulsive behavior. They were expressions that tended to coerce and intimidate African American employees in the exercise of rights protected under the Act.”

One More Reason Misclassification Kills 2016-09-15T14:38:14-06:00

Posted on September 15, 2016

By John Alan Doran

You’ve heard plenty about the evils of misclassifying employees as independent contractors. And, according to the DOL, among others, you’re still doing it wrong. The NLRB doubled down on this recently when the NLRB General Counsel released an advice memorandum stating that an employer’s misclassification of employees as independent contractors also violates the National Labor Relations Act.

In a nutshell, a freight cargo employer informed its drivers that they were all independent contractors and therefore the company’s recent settlement of unfair labor practice charges did not apply to the drivers. The NLRB General Counsel took umbrage with this position and concluded that an employer’s misclassification of employees as independent contractors “chills” employees’ exercise of Section 7 rights under the NLRA. The General Counsel found that there could be no conceivable reason why an employer would treat employees as independent contractors other than to chill Section 7 rights. Really?

So, add the NLRA and potential unfair labor practice charges to the “parade of horribles” employers face when they misclassify employees as independent contractors. And, add misclassification as another attempt by the NLRB to grossly expand its own jurisdiction under the NLRA.

NLRB Classifies TAs as Employees 2016-08-23T13:13:52-06:00

Posted on August 23, 2016

By Bill Wright

The NLRB chose not to interfere with collegiate football. Northwestern University, Case 13-RC-121359 (August 17, 2015). Collegiate teaching assistants, though, are another thing. In Columbia University, Case 02-RC-143012 (August 23, 2016), the Board reversed another established precedent to assert that teaching assistants (“TAs”) are “statutory employees” and may choose to have union representation. The Board majority’s reasoning, roughly, was that the NLRA covers any employee (except managers), unless there are good reasons to exclude them; and there is no empirical evidence to justify excluding TAs. As the dissenting Board member pointed out, all those NLRB decisions we’ve been blogging about now apply in the college setting: TAs may use strong and abusive language about their supervisors in public media posts; college investigations (e.g. into sex harassment of students) might not be kept confidential; and colleges won’t be able to enforce vague civility rules like “collegiality.” Many public universities already have state-authorized collective bargaining, but the liberal arts college experience might be forever altered. Too bad we can’t gather empirical evidence from the future.

Latest NLRB Power-Grab Benchslapped 2016-06-02T13:14:28-06:00

Posted on June 2, 2016

By John Alan Doran

In another setback for the NLRB, a federal appeals court ruled recently that the NLRB lacks the authority to impose adverse attorneys’ fees awards against employers in Board proceedings. HTH Corporation v. NLRB The case involved a serious and serial violator of the NLRA, according to the Board and multiple courts. In the face of a recent wave of additional violations of the Act and a standing court-ordered injunction, the Board imposed multiple remedial penalties against the employer, including an order that the employer reimburse the Board and the union for all litigation expenses associated with the latest dispute. The Board asserted that it possesses an “inherent” right to award litigation expenses as a “deterrent” to future violations of the NLRA. Noting that no federal agency possesses “inherent” rights, the D.C. Circuit analyzed Section 10(c) of the NLRA to see if that provision establishes a “statutorily implicit” right for the Board to impose litigation expenses. The Court concluded that Section 10(c) confers no such implied right on the NLRB.

In an era of seemingly ever-expanding Board jurisdiction and authority, this case is a pleasant reminder that the Board is not above the law. It also removes from the Board an extremely powerful tool in its enforcement arsenal, so we might expect the Board to try to get the attention of the Supreme Court on this case.

The War on Employment Arbitration 2016-05-31T08:57:30-06:00

Posted on May 31, 2016

By Andy Volin

The Seventh Circuit just created a split in the Federal Courts of Appeals by ruling an employment arbitration provision that did not permit arbitration of collective claims was not enforceable because it violated the National Labor Relations Act. Lewis v. Epic Systems Corp., No. 15-2997 (7th Cir. May 26, 2016). This is the first federal appellate court that has agreed with the decision by the National Labor Relations Board in the D.R. Horton case (Read our blog post here). This decision only affects workers in states in by the Seventh Circuit – Illinois, Indiana, and Wisconsin. Epic Systems conflicts with decisions by several other Federal Circuits – the Fifth and Eighth Circuits. This makes it more likely that the Supreme Court will have to resolve the split in the circuits.

The Epic Systems decision is significant in several respects, but it should not be read as ending the ability of employers to require arbitration of employment claims, even in the 7th Circuit. Employers can still require employees to arbitrate most types of common employment claims, including wage and hour claims. But if a dispute arises in Illinois, Indiana or Wisconsin, the courts won’t enforce an arbitration clause with a class action waiver, at least until the Supreme Court takes the issue on.

Handbook Revisions Due 2015-11-09T14:16:05-07:00

Posted on November 9, 2015

By Bill Wright

The U.S. Court of Appeals for the District of Columbia sided with the NLRB on 3 common employer policies. These rules violate the NLRA on their face:

The “investigative confidentiality rule.” The company had a rule that “prohibited employees from revealing information about matters under investigation.” This was overly broad. Sure, EEO investigations should be kept confidential – the EEOC says so. But that doesn’t mean that absolutely every investigation should be confidential.
The “electronic communications rule.” The company policy said: “employees should only disclose information or messages from (the company’s electronic communications systems) to authorized persons.” This violated the NLRA because a reasonable person might not know this rule applied only to confidential information in an email.
The “working hours rule.” The company’s policy said it might discipline employees for “performing activities other than Company work during working hours.” Did you spot the error? Yep, the policy said “working hours” when it should have said “working time.” “Hours” include breaks.

On the other hand, the company’s “complaint provision” did NOT violate the NLRA. The policy directed employees to voice complaints to an immediate superior or to HR and went on to say “complaining to your fellow employees will not resolve problems. Constructive complaints communicated through the appropriate channels may help improve the workplace for all.” This language did not forbid communications among employees; it only exhorted employees not to communicate.

Time to re-edit those policies. Hyundai America Shipping Agency, Inc. v. NLRB, No. 11-1351 (D.C. Cir. November 6, 2015)

NLRB Sticks To D.R. Horton 2015-05-08T08:06:37-06:00

Posted on May 8, 2015

By Lori Phillips

Recently in Chesapeake Energy Corp., 362 NLRB No. 80 (Apr. 30, 2015), the NLRB held fast to its ruling in D.R. Horton, Inc., 357 NLRB No. 184 (2012). The employer required its employees to sign an arbitration agreement as a condition of employment. The agreement required “binding arbitration to resolve all disputes” between employees and the company, and specifically identified claims under the NLRA, among other statutes. The agreement also prohibited employees from bringing class or collective actions. The Board ruled the agreement violated Section 8(a)(1) of the Act for two reasons—first, the all-encompassing language would lead employees to believe they could not file unfair labor practice charges with the Board, and second, the total proscription of class or collective actions would take away “the core substantive right” of collective legal action protected by the Act. The Board’s decision does not change the current state of the law. Rather, it shows the Board has dug in its heels where mandatory arbitration and class action waivers are concerned. For other entries on D.R. Horton, click here.

NLRB “Modernizes” Procedures 2014-12-12T16:00:54-07:00

Posted on December 12, 2014

By Patrick Scully and Beth Ann Lennon

The NLRB has adopted comprehensive changes to the procedures for representation elections under the NLRA. Some changes, such as the ability to file documents electronically, clearly bring Board election procedures into this century. Unfortunately, a majority of the changes only speed up the election process itself. The adopted changes complicate election proceedings while reducing the time for compliance. As the dissenting Board Members thoroughly discussed, these changes disproportionately burden employers while simultaneously failing to provide sufficient time for employees to get information necessary to make an informed decision, the keystone of the Act. For example, pre-election hearings are not permitted in most cases—litigation at the pre-election hearing is limited to “those issues necessary to determine whether it is appropriate to conduct an election.” Even if a hearing is permitted, it must be held eight days after hearing notice is served. The employer must submit a Statement of Position within eight days (or the day before the hearing). This statement will bind the employer in all subsequent litigation. So, don’t forget anything! Employers must also provide a list of prospective voters to the Board agent and the Union at the same time it provides its Statement of Position, before the NLRB’s regional director directs an election or approves an election agreement. Once the NLRB’s regional director approves an election agreement or directs an election, the employer must provide an eligible voter list within two days and this list must now include personal email addresses and phone numbers of employees. In this rush to the election, the employees will likely hear only one voice—that of the union organizer.

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