HR That Works Blog

A National Labor Relations Board Administrative Law Judge ruled on September 28th, 2011 that Knauz BMW, a Chicago area car dealership, did not wrongfully terminate an employee for his Facebook postings. However, Judge Joel P. Biblowitz also found that the dealership had an overly broad employee policy, and ordered posting of a notice informing employees of their right to engage in protected concerted activity.

The case involved the employee’s posting to Facebook of two incidents, one involving a sales event and another involving an accident at an adjoining dealership. In the first, the employee, a car salesman, and coworkers were unhappy with the quality of food and beverages at a dealership event promoting a new BMW model. Though the salespeople did not directly complain to their employer that the food offerings could affect their commissions, they discussed with each other that their sales could suffer as a result. Following the event, one salesman posted photos and commentary on his Facebook page critical that only hot dogs and bottled water were being offered to customers. Other employees had access to and commented on the Facebook page.

On the same day, the salesman posted photos of an accident that had occurred earlier involving a vehicle from an adjacent dealership that was accidently driven into a pond. Both dealerships are part of the same ownership group. Judge Biblowitz found that while the postings involving the sales event and the subsequent exchange of comments with other employees was protected activity, the postings involving the accident were not. Further, the judge found that the salesman was terminated for the accident postings, and therefore not protected under the National Labor Relations Act.

Regarding the employee policy, Judge Biblowitz found that certain paragraphs were overly broad and tended to chill employee rights by prohibiting employees from participating in interviews with or answering inquiries concerning employees. Though the employer had changed the policy prior to the hearing, the judge ordered that a notice be posted at the dealership informing employees of their right to engage in protected concerted activity.

The National Labor Relations Board’s Acting General Counsel released a report detailing the outcome of investigations into 14 cases involving the use of social media and employers’ social and general media policies. In releasing the document, Acting General Counsel Lafe Solomon said, “I hope that this report will be of assistance to practitioners and human resource professionals.”

Each case was submitted by regional offices to the NLRB’s Division of Advice in Washington, DC. In four cases involving employees’ use of Facebook, the Division found that the employees were engaged in “protected concerted activity” because they were discussing terms and conditions of employment with fellow employees. In five other cases involving Facebook or Twitter posts, the Division found that the activity was not protected.  In five cases, some provisions of employers’ social media policies were found to be unlawfully overly-broad. A final case involved an employer’s lawful policy restricting its employees’ contact with the media.

Lesson for HR That Works Members: The NRLB and present administration continue to do everything possible to socialize the workplace. According to these cases any time an employee complains about conditions of employment and involve other employees they are clearly protected.  It seems to make little difference how rude they are and whether they slam the company or its management. I have no doubt some of these companies got advice from counsel that termination was proper. I’m sure many of the “overbroad” policies were drafted by counsel too.  It is a tricky area and a trap because the law changes almost daily. While much of it seems a bit insane (i.e. getting away with calling your boss an asshole on a public website and worse), it is the law. As an additional note, since some of the employees complained about health or safety type matters they may also be protected by whistleblower and similar laws. Bottom line: Get some advice before terminating anyone who does anything with social media and make sure your policies are not overbroad.

Conflict between the National Labor Relations Board and Congressional Republicans (primarily the House Oversight and Government Reform Committee and its chair, Darrell Issa (R-Cal.)) continues to escalate. Animosity between the two began in 2010, with President Obama’s nomination of Craig Becker to the NLRB and his subsequent recess appointment of Becker to serve on the Board after Becker failed to garner sufficient Senate support to be confirmed the old fashioned way. Becker, formerly General Counsel to the Service Employees International Union, opined in his prior career that employers should have no rights to express their views about unionization during the course of a union organizing campaign. The Obama NLRB has consistently moved closer to Becker’s viewpoint. Examples include initiating litigation against Boeing for building a non-union facility in Charleston, South Carolina, which neither constituted a transfer of work nor caused the layoff of any Boeing union-represented employee in Seattle. The House Oversight Committee conducted hearings in Charleston, South Carolina, and forced NLRB General Counsel Lafe Solomon to testify at those hearings.

Continuing to fuel its regulatory revolution, the NLRB on June 21, 2011, proposed sweeping changes to union representation election rules and procedures (which could result in less than 10 days between the filing of a union petition and the date of an election), to reduce the amount of time employees have available to consider all of the facts and information necessary before making such a critical decision, and to limit employer rights regarding voter eligibility.

Issa requested documents from Solomon regarding the NLRB analysis and decision to issue a complaint against Boeing. Issa gave Solomon a deadline of Tuesday, July 26, 2011, at 5:00 p.m. In refusing to comply with Issa’s request, Solomon wrote that, “It remains my belief that premature disclosure of the Boeing case file would severely impact the parties’ due process rights and the Agency’s legal processes.” The question now is whether Issa will take the next step of issuing a subpoena to Solomon and, if so, will Solomon provide the requested documents.

Article courtesy of Worklaw® Network firm Lehr Middlebrooks & Vreeland, P.C.

The National Labor Relations Board will publish in the Federal Register tomorrow a Notice of Proposed Rulemaking, which proposes amendments to its existing rules and regulations governing procedures in representation cases. The proposed amendments are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing. 

“One of the most important duties of the NLRB is conducting secret-ballot elections to determine whether employees want to be represented by a labor union,” said Chairman Wilma B. Liebman in a statement. “Resolving representation questions quickly, fairly, and accurately has been an overriding goal of American labor law for more than 75 years.” Click here to view her full statement. 

If finally adopted after a public notice-and-comment process, the proposed amendments would:

•  Allow for electronic filing of election petitions and other documents.
   
• Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.
   
• Standardize timeframes for parties to resolve or litigate issues before and after elections.
   
• Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.
   
• Defer litigation of most voter eligibility issues until after the election.
   
• Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters’ telephone numbers and email addresses when available.
   
• Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.
   
• Make Board review of post-election decisions discretionary rather than mandatory.

For details on the proposed amendments, view our fact sheet here and summary here.

As the Notice of Proposed Rulemaking states: 

The Board believes that the proposed amendments would remove unnecessary barriers to the fair and expeditious resolution of questions concerning representation. The proposed amendments would simplify representation-case procedures and render them more transparent and uniform across regions, eliminate unnecessary litigation, and consolidate requests for Board review of regional directors’ pre- and post-election determinations into a single, post-election request.  The proposed amendments would allow the Board to more promptly determine if there is a question concerning representation and, if so, to resolve it by conducting a secret ballot election.

Board Member Brian Hayes dissented from the proposed rulemaking.  In his opinion, 

The Board and General Counsel are consistently meeting their publicly-stated performance goals under the current representation election process, providing an expeditious and fair resolution to parties in the vast majority of cases, less than 10 percent of which involve contested preelection issues.  Without any attempt to identify particular problems in cases where the process has failed, the majority has announced its intent to provide a more expeditious preelection process and a more limited postelection process that tilts heavily against employers’ rights to engage in legitimate free speech and to petition the government for redress.  Disclaiming any statutory obligation to provide any preliminary notice and opportunity to comment, the majority deigns to permit a limited written comment period and a single hearing when the myriad issues raised by the proposed rules cry out for far greater public participation in the rulemaking process both before and after formal publication of the proposed rule.  The majority acts in apparent furtherance of the interests of a narrow constituency, and at the great expense of undermining public trust in the fairness of Board elections.

His dissent may be found here.

In the Notice of Proposed Rulemaking, the Board responded to the dissent.

Note to employers: The NRLB will continue its efforts to help unionize the workplace. It is simply a political issue so don’t get too caught up in the logic of it. Do be aware of your exposure and rights however.

Sheet Metal Workers International Association, Local 15, AFL-CIO and Galencare, Inc., d/b/a Brandon Regional Medical Center and Energy Air, Inc.(12-CC-01258 et al.; 356 NLRB No. 162) Tampa, FL, May 26, 2011.

In this secondary boycott case, the Board majority found that the Union did not violate Section 8(b)(4)(ii)(B) by displaying a large inflatable rat on public property in front of a hospital to protest its hiring of nonunion contractors. The majority also found that the act of a union member standing at a hospital entrance displaying a leaflet with two outstretched arms was not unlawful. The Union had a primary labor dispute with the two contracting companies over the alleged payment of substandard wages and benefits below. Applying its reasoning in Carpenters Local 1506 (Eliason & Knuth), 355 NLRB No. 159 (2010), the Board reversed the administrative law judge and found that the rat display and leaflet display by the union member was not picketing and so was not coercive and unlawful.  Finally, the Board found that because the rat and leaflet display was similar to other “expressive activity” that the Supreme Court has held is protected by the First Amendment, serious constitutional questions would be raised if the Union’s conduct here was found unlawful.

Relying on his dissenting opinion in Eliason, Member Hayes stated that he would affirm the judge’s finding that the rat display and the leaflet display by the union member were unlawful because both actions constituted picketing.  Member Hayes found that the rat display was “tantamount to picketing”, and because the First Amendment does not protect secondary picketing, Member Hayes found no constitutional barrier in finding a violation. 

Charges were filed by the Sheet Metal Workers Local 15.  Administrative Law Judge George Carson II issued his decision on December 7, 2004.  Chairman Liebman, and Members Becker, Pearce, and Hayes participated.

As reported on www.socialmediarisks.com, a settlement has been reached in a case involving the discharge of a Connecticut ambulance service employee for posting negative comments about a supervisor on her Facebook page. In light of that case I did research into the history of NLRB opinions that affect this issue. Here’s what I found (emphasis mine):

• Although employees are permitted some leeway for impulsive behavior when engaging in concerted activity, this leeway is balanced against an employer’s right to maintain order and respect.
  Piper Realty:  http://mynlrb.nlrb.gov/link/document.aspx/09031d45800b9d6b
• [A]n employee’s use of obscenity was protected where it constituted a spontaneous outburst during the heat of a formal grievance proceeding or contract negotiations, or was provoked by an employer’s unfair labor practice. However, it is well settled that concerted activity loses its protection under the Act when the actions are malicious, defamatory, or insubordinate. It is also well established that union stewards involved in the processing of grievances lose the protection of the Act when their conduct is extraordinary, obnoxious, wholly unjustified, and a departure from the res gestae of the grievance procedure. Here, by any reasonable standard, Wagner’s epithets against Kemper were malicious, defamatory, insubordinate, obnoxious, and wholly unjustified.
  Caterpillar:  http://mynlrb.nlrb.gov/link/document.aspx/09031d45801b27bc
• Respondent did not violate Sec. 8(a)(1) by maintaining a rule prohibiting “any conduct, on or off duty, that tends to bring discredit to, or reflects adversely on, yourself, fellow associates, the Company, or its guests . . .”
  Ark Las Vegas Restaurant Corp., 335 NLRB 1284 fn. 2, 1292–1293 (2001)
• Respondent did not violate Sec. 8(a)(1) by maintaining a rule prohibiting “off-duty misconduct that materially and adversely affects job performance or tends to bring discredit to the Hotel”.
  Flamingo Hilton-Laughlin, 330 NLRB 287, 288–289 (1999)
• “We find that the General Counsel has not met his burden to show that the prohibition on “disloyal, disruptive, competitive, or damaging” conduct would reasonably tend to chill employees in the exercise of their Section 7 rights…. Lieberman Dissented in these cases. He would find these rules “chilling” of free speech rights.”
  Tradesman Int’l:  http://mynlrb.nlrb.gov/link/document.aspx/09031d45800c0f72
• The Sears company policy prohibited “Disparagement of company’s or competitors’ products, services, executive leadership, employees, strategy, and business prospects.” According to the Board: “We conclude that no employee could reasonably construe the Employer’s Social Media Policy to prohibit Section 7 activities. As noted above, there is no evidence that the Employer implemented this Policy in response to protected activities. In the absence of any evidence that the Policy has been utilized to discipline Section 7 activity, there is no Section 8(a)(1) violation and the case should be dismissed, absent withdrawal.”
  Sears Holdings (Roebucks) 512-5012-0100 Case 18-CA-19081 (2010)
• You can find additional authority by going to http://www.nlrb.gov

Bottom line: When drafting these policies use the magic words above. And then keep your fingers crossed, as nobody has a clue what these words really mean in context and where this will go given the NLRB’s current commissioners.

Yesterday, the National Labor Relations Board announced the launch of a new agency website that is more flexible, timely, easy to navigate, and useful to a variety of audiences, from practitioners to first-time visitors.

The redesigned and re-imagined site, at www.nlrb.gov, builds on an overarching effort toward greater transparency and efficiency at the NLRB, which enforces federal labor laws covering most private sector employment.

 Among highlights of the new site:

• More case information is available more quickly than ever before. All Board decisions are now posted to the site at the time they are issued, rather than after a three-day holding period. The Board is also for the first time posting unpublished decisions, which do not appear in the official bound volumes of Board decisions. Additional documents from Washington and the regional offices not previously available will be posted to the site over time.
   
• The website showcases a new case-management system that has been coming online at the agency for more than a year, and will be deployed to all regional offices by the end of this fiscal year. The new single system replaces 13 separate case tracking systems, and will allow for seamless searches that cover the entire life of a case at the agency. Each case is assigned its own page, where information and documents are posted. More information and documents will be added over time as the rollout of the new system is completed.
   
• For the first time, the agency’s 32 regional offices – where all cases and elections begin – are prominently highlighted in the new site. An interactive map shows regional boundaries and allows visitors to quickly locate their own regional office. One click away is a page for each region that lists top officials and features newsletters, news releases and local cases and decisions.
   
• A data section tracks NLRB activities over the years by the numbers. The section launches with eight charts and tables covering a variety of indicators, from charges filed to back pay collected. More charts and tables, with greater interactivity, will be added through the year.
   
• Improved navigation will make it far easier for visitors to find their way, and new pages explain the NLRB processes and functions in accessible language. At the same time, all the case-handling manuals, memos and forms found on the old website will be available on the new one.

The new NLRB website is a reflection of Chairman Wilma Liebman’s advocacy for a more open and engaged agency. Other recent developments to that end include increased use of press releases to describe activities in Washington and the regions, a subscription service that allows users to choose email delivery of press releases, decisions and memos, and active Facebook and Twitter accounts.

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. To sign up for email delivery of these releases or other NLRB documents, or to change your subscriber preferences, please click here.

On November 2nd the NLRB issued a press release which stated the following:

Complaint alleges Connecticut company illegally fired employee over Facebook comments
Employee posted remarks about supervisor following work-related incident

A complaint issued by the NLRB’s Hartford regional office on October 27 alleges that an ambulance service illegally terminated an employee who posted negative remarks about her supervisor on her personal Facebook page. The complaint also alleges that the company, American Medical Response of Connecticut, Inc., illegally denied union representation to the employee during an investigatory interview, and maintained and enforced an overly broad blogging and internet posting policy.

When asked by her supervisor to prepare an investigative report concerning a customer complaint about her work, the employee requested and was denied representation from her union, Teamsters Local 443. Later that day from her home computer, the employee posted a negative remark about the supervisor on her personal Facebook page, which drew supportive responses from her co-workers, and led to further negative comments about the supervisor from the employee. The employee was suspended and later terminated for her Facebook postings and because such postings violated the company’s internet policies.

An NLRB investigation found that the employee’s Facebook postings constituted protected concerted activity, and that the company’s blogging and internet posting policy contained unlawful provisions, including one that prohibited employees from making disparaging remarks when discussing the company or supervisors and another that prohibited employees from depicting the company in any way over the internet without company permission. Such provisions constitute interference with employees in the exercise of their right to engage in protected concerted activity. A hearing on the case is scheduled for January 25, 2011.

Fact is, social media creates an entirely new world of employer risks. If you haven’t watched our training video on Social Media Risks, now would be a good time to do so!

The National Labor Relations Board issued 351 decisions in contested cases during Fiscal Year 2010 (October 1, 2009 – September 30, 2010), resolving the Agency’s oldest pending cases and tackling some of the difficult issues that had deadlocked the Board as it awaited new members.

The year-end numbers represent an increase of more than 20% over the previous year. Moreover, the number of decisions issued increased sharply in the final two months of the fiscal year, suggesting a more productive Board going into FY 2011.  To read the rest go to http://www.nlrb.gov/shared_files/Press%20Releases/2010/R-2787.pdf .

Case is part of backlog being tackled by newly-constituted Board

The National Labor Relations Board has ruled that the results of a 2003 union election at a set of New York group homes for the developmentally disabled should stand, rejecting claims by the employer that a state law had made a fair election impossible. The decision resolves the oldest election case pending at the Board.

Employees at Independence Residences, Inc. voted 68 to 32 to join the Union of Needletrades, Industrial and Textile Employees (now UNITE-HERE!) in a mail ballot. Under the Board’s ruling, the union will now be certified as their representative.

After agreeing to a union election in the spring of 2003, the employer – a non-profit company largely supported by public funds — asked to withdraw from the election. It argued that a new state law forbidding the use of state funds to support specific activities intended to encourage or discourage unionization would unfairly constrain the employer’s ability to express its views. (The state law is being challenged in federal court on grounds that it is preempted by federal labor law.) The employer filed objections to the election based on the state law.

The decision, signed August 27 but made public today, was split 3-2, with Chairman Wilma Liebman and Members Mark Pearce and Craig Becker in favor of allowing the results to stand, and Members Peter Schaumber and Brian Hayes saying that the election should have been set aside.  In a concurring opinion, Chairman Liebman stated that the case had languished at the Board “for an unconscionably long time.”  To read the decision in Independence Residences, Inc., 29-RC-10030, click here.

The Board, which reached full five-member strength this summer for the first time since late 2007, has been tackling a backlog that stood at more than 350 cases in mid-summer. The cases included novel and difficult issues that awaited a larger Board, as well as about 100 previously-decided cases that were returned following the June 17 Supreme Court decision in New Process Steel v. NLRB. (See background material here).

The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees’ rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions.

Article courtesy of the NLRB.