Tag Archives: NLRA

NLRB Clarifies Social Media Case Analysis

I mentioned this case before in a prior post.  Nevertheless, it warrants a follow up post dealing specifically with this case: Hispanic United of Buffalo.

In Hispanic United of Buffalo,the NLRB clarified the analysis for Facebook and other social media cases.

The facts are fairly typical for the increasing number of Facebook cases.  One employee had been complaining about the performance of co-workers and informed one of them that she was going to report her criticisms to the boss.  The co-worker posted a message on her Facebook page noting the criticism, saying she had “about had it,” and asking her fellow co-workers how they felt.  Four of them posted a defense of their work on the Facebook page, all while off-duty and on their own computers.  The employer fired all five for bullying the critical employee on Facebook.

All three Board members (Block, Griffin, and Hayes) agreed that the usual analysis for Section 8(a)(1) terminations–Meyers Industries–is applicable.  There wasn’t much discussion on this point, which is not surprising, as there is really nothing special about using social media other than it’s newer and cooler than more traditional forms of communication.  This essentially confirms what the General Counsel and many commentators (including yours truly) has been saying for a while, but it’s obviously a lot more helpful for the Board to make that clear.

via Workplace Prof Blog: NLRB Clarifies Social Media Case Analysis.

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NLRB recent decisions

This is the list of the most recent and significant decisions decided by the NLRB:

Hispanics United of BuffaloThe Board found that the employer unlawfully fired five employees because of their Facebook posts and comments about a coworker who intended to complain to management about their work performance. In its analysis, the Board majority applied settled Board law to the new world of social media, finding that the Facebook conversation was concerted activity and was protected by the National Labor Relations Act. Member Hayes dissented.

Alan Ritchey, Inc. – In a unanimous decision that resolved the last of the two-member cases returned following the 2010 Supreme Court decision in New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing discipline such as a discharge or suspension on employees. Member Hayes was recused.

Latino Express In a decision that will affect most cases in which backpay is awarded, the Board decided to require respondents to compensate employees for any extra taxes they have to pay as a result of receiving the backpay in a lump sum. The Board will also require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned. The Board requested briefs in this case in July 2012. Member Hayes did not participate in the case.

Chicago Mathematics & Science Academy – Rejecting the position of a teachers’ union, the Board found that it had jurisdiction over an Illinois non-profit corporation that operates a public charter school in Chicago. The non-profit was not the sort of government entity exempt from the National Labor Relations Act, the Board majority concluded, and there was no reason for the Board to decline jurisdiction. Member Hayes dissented in part.

United Nurses & Allied Professionals (Kent Hospital) – The Board, with Member Hayes dissenting, addressed several issues involving the rights of nonmember dues objectors under the Supreme Court’s Beck decision. On the main issue, the majority held that, like all other union expenses, lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. The Board invited further briefing from interested parties on the how it should define and apply the germaneness standard in the context of lobbying activities.

WKYC-TV, Gannet Co. Applying the general rule against unilateral employer changes in terms and conditions of employment, the Board found that an employer’s obligation to collect union dues under a check-off agreement will continue after the contract expires and before a bargaining impasse occurs or a new contract is reached. Member Hayes dissented.

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Union Decertification Case Law

The D.C. Circuit Court of Appeals, in SFO Goodnite Inn v. NLRB, ____F.3d____ (D.C. Cir. Nov. 20, 2012), enforced  a National Labor Relations Board order finding a California hotel improperly withdrew recognition from a UNITE HERE local, rejecting the hotel’s argument that it lawfully relied on anti-union petitions signed by a majority of its employees.

In the decision, the court approved the NLRB’s interpretation of Hearst.

[T]he Board has now articulated a clear line for applying the Hearst presumption of taint in “the narrow circumstance where an employer unlawfully instigates or propels a decertification campaign, and then invokes the results of that campaign to justify its unilateral withdrawal of recognition from its employee’s representative.”

The Board explained that the Hearst presumption applies where the employer is directly involved in advancing a decertification petition, whereas the Master Slack test applies where the employer committed unfair labor practices unrelated to the petition that may have contributed to the erosion of support for the union.

ok

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DC upholds challenge to Health Care Rule

In San Miguel Hosp. Corp. v. NLRB, ___F.3d___ D.C. Cir. 11/02/12, The DC Court of Appeals affirmed the NLRB’s decision to certify the Union as the sole representative of a unit that comprised professionals and non-professional employees.

The Hospital raised two main arguments.

  1. The Hospital argued that the Health Care Rule violated Section 9 of the NLRA because it endorses the extent of a union’s organization as the controlling factor in unit determination.
  2. The Hospital also argued that unit certification is improper when the unit comprises professional and non-professional employees.

The Court responded to these arguments as follows.

  1. The Court held the argument to have “zero merit.”  First, the Court explained, the administrative record makes “quite clear that the factors the Board considered in deciding upon the eight listed units included ‘uniqueness of function; training, education and licensing; wages, hours and working conditions; supervision; employee interaction; and factors relating to the collective bargaining agreement.'”  Second, the Court stated that the NLRA only requires that the extent of organization not be the controlling factor.  Therefore, the “consideration of that factor among others is entirely lawful.”
  2. Regarding the second Hospital’s argument, the Court highlighted the fact that the Hospital never challenged this issue.  The Court also stated that there is no precedent, in the NLRB or Courts, that addressed this specific issue.  As a consequence, the Court concluded that no remand was necessary since the Hospital waived any subsequent challenge.

In plain words, the DC Circuit Court of Appeals reaffirmed two main conclusions, supported by precedent.

First, that if you don’t raise a challenge below — you cannot raise a challenge in appeal.

Second, that the NLRA Section 9(c) provides that the NLRB can use the extent of the organization as a factor, as long as it is not controlling.  Since the NLRB used a plethora of factors, it was clear that it did not decide the issue solely on the extent of union organization.

What we can learn from this case is simple.  Raise all challenges in the court below to make sure you preserve these challenges in an appeal.

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11th Circuit Issues Major NLRA Supervisor Decision

The Eleventh Circuit  held that the National Labor Relations Board lacked substantial evidence to support its conclusion that licensed practical nurses at a Florida nursing and long-term care facility were employees rather than supervisors. Lakeland Health Care Assocs. v. NLRB, ___F.3d___( 11th Cir., No. 11-12000, 10/2/12).

Finding NLRB improperly certified a United Food and Commercial Workers Union as the bargaining representative for a unit of LPN team leaders, the majority stated that the board “meticulously excluded or disregarded” evidence indicating the LPNs were supervisors outside the protection of the NLRA.

Dissenting, Judge William H. Pryor said the court’s own precedents precluded it from “reweighing the evidence” relied on by the board.

via Adjunct Law Prof Blog: 11th Circuit Issues Major NLRA Supervisor Decision.

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NLRB Issues First Facebook Decision

Karl Knauz Motors, 358 NLRB No. 164 (Sept. 28, 2012), is going to be a lead case in the area of social media simply because it is the first actual decision from the Board. Click here to download  Knauz BMW The Board issued a press release describing the decision. The decision was divided along party lines.

Basically, the Board held that a Facebook posting that caused an employee’s discharge was not unlawful under the NLRA. Another interesting aspect of the case is that it found that a courtsey rule was unlawful as overbroad because it might chill Section 7 activity. With respect to that issue the Board stated:

We find the “Courtesy” rule unlawful because employees would reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the image or reputation of the Dealership” as encompassing Section 7 activity, such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them. First, there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach. See generally Costco Wholesale Corp., 358 NLRB No. 106 (2012) (finding unlawful the maintenance of a rule prohibiting statements posted electronically that “damage the Company . . . or damage any person’s reputation”).

Second, an employee reading this rule would reasonably assume that the Respondent would regard statements of protest or criticism as “disrespectful” or “injur[ious] [to] the image or reputation of the Dealership.”

With respect to the discharge, the Board found that the employee was not engaged in protected activity, the Board summarily affirmed

the ALJ who found that the employee was not discharged for protected activity. As the ALJ explained:

Rover accident on his Facebook account was neither protected nor concerted activities, and Counsel for the General Counsel does not appear to argue otherwise. It was posted solely by Becker, apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting. It is therefore necessary to determine whether Becker was terminated because of the Event posting, the Land Rover posting, or for both.

via Adjunct Law Prof Blog: NLRB Issues First Facebook Decision.

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Recent Notable NLRB decisions

This is a really good article I came across —-

 

Recent Notable National Labor Relations Board Decisions

By James Hays and Rebecca Hirschklau

While many have been enjoying well deserved summer vacations, the National Labor Relations Board (“NLRB”) has been busy. In the past two weeks the NLRB has issued decisions regarding investigative confidentiality directives and the permissible scope of the well-recognized “at-will” statement.

A. Confidentiality Directives During Internal Investigations
In Banner Health Systems d/b/a Banner Estrella Medical Center and James Navarro, 358 NLRB 93 (2012), the National Labor Relations Board (“NLRB”) declared that a blanket statement to employees that the contents of a complaint and/or investigation should not be discussed with co-workers was in violation of Section 8(a)(1) of the National Labor Relations Act (“NLRA”) as restrictive of an employee’s rights arising under Section 7 of the NLRA. [1]

In Banner Health Systems, an employee made a complaint concerning instructions he had received from his supervisor that he felt were not proper and would endanger patients. After the employee had made the complaint, he was told by the human resources consultant not to discuss the matter with his coworkers while the employer was investigating the complaint. The Administrative Law Judge (“ALJ”) found, among other things, that this prohibition was not in violation of Section 8(a)(1), the NLRB disagreed.

While it is generally a standard investigative protocol to advise an interviewee to keep the subject matter of the interview confidential during the investigative process, the NLRB found that the employer had failed to show that the desire for confidentiality out-weighed the employee’s Section 7 rights. Rather, the NLRB held that in order to minimize the restrictive nature of the prohibition on communication, the employer must first determine whether in any given investigation: “(i) witnesses needed protection; (ii) evidence was in danger of being destroyed; (iii) testimony was in danger of being fabricated; or (iv) there was a need to prevent a cover up.”

In light of the NLRB’s Banner Health Systems, decision, employers should be aware that mere protection of the investigation may no longer be sufficient to justify a blanket prohibition. Instead, an employer must make a case-by-case, witness-by-witness, determination of the above four factors before prohibiting an employee from discussing the investigation and/or complaint with his/her coworkers. Individually analyzing these four factors should ensure that the prohibition on discussion will be justified.

B. Employment At-Will Statement in Employee Handbook Acknoweldgement

In American Red Cross Arizona Blood Services Region and Lois Hampton, Case 28-CA-23443, (2012) a NLRB Administrative Law Judge (“ALJ”) held that a statement in an employee handbook acknowledgment form concerning the permanence of the employee’s at-will employment status was in violation of Section 8(a)(1) of the NLRA as restrictive of an employee’s rights arising under Section 7 of the NLRA.

In American Red Cross, the employer’s Agreement and Acknowledgment of Receipt of Employee Handbook form contained the following language: “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The ALJ noted that where an employer’s rule is likely to have a chilling effect on Section 7 rights, the Board may conclude that its maintenance is an unfair labor practice even in the absence of evidence of enforcement.

Analyzing the language in the handbook acknowledgment form under the two-step inquiry utilized for determining whether an employer’s rule violates the NLRA, the ALJ found that “in his view” there was no doubt that employees would reasonably construe the language to prohibit Section 7 activity. The ALJ found that the acknowledgment form was essentially a waiver in which an employee agrees that his/her at-will employment can never change, thereby relinquishing any rights to advocate concertedly, whether represented by a union or not.

While it remains to be seen whether this case will be reviewed by the NLRB, employers should be mindful of and review the employment at-will language contained in their employee handbooks and acknowledgment forms. One fix for employers is to ensure that your standard “at-will” statements do not include a permanent ban on future amendments – something akin to the language reflecting that the at-will employment status can be changed only with the approval of an officer of the employer should surface and/or simply omitting any reference regarding the permanence of the at-will status.

 


[1] Section 7 provides that “[e]mployees shall have the right to self-organization, to for, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

 

 

via Labor Employment Law Blog: Recent Notable National Labor Relations Board Decisions.

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NLRB Seeks Briefing on Backpay Calculation Rules

The NLRB in Latino Express, Inc., 359 NLRB No. 94 (July 31, 2012) (scroll down to decision) decided not to decide two issues raised by the Acting General Counsel and instead invited “all interested parties” to file briefs on two issues regarding awarding backpay to discriminatees:

Should the Board routinely require a respondent to:

(1) submit the appropriate documentation to the Social Security Administration so that when backpay is paid, it will be allocated to the appropriate calendar quarters; and/or

(2) reimburse a discriminatee for any excess Federal and State income taxes the discriminatee may owe in receiving a lump-sum backpay award covering more than 1 year.

Briefs are due by October 1, 2012.

Workplace Prof Blog: NLRB Seeks Briefing on Backpay Calculation Rules.

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NLRB Issues Primer On Supervisory Status

Alternative Concepts, 358 NLRB No. 38 April 27, 2012, is an interesting case. The Board reaffirms the Oakwood line of cases and summarizes the applicable law as follows:

The Board set out the analytical framework for determiningsupervisory status in Oakwood Healthcare, 348 NLRB 686 2006, in which it defined the statutory terms“assign,” “responsibly to direct,” and “independentjudgment.” See also Croft Metals, 348 NLRB 717, 721–722 2006, and Golden Crest Healthcare Center, 348NLRB 727, 728, 731 2006. The burden of provingsupervisory status rests on the party asserting that suchstatus exists. Oakwood Healthcare, 348 NLRB at 694,citing Dean & Deluca New York, 338 NLRB 1046, 10472003. The party seeking to prove supervisory statusmust establish it by a preponderance of the evidence. Id.at 1047–1048; Springfield Terrace LTD, 355 NLRB 937,941 2010. Mere inferences or conclusionary statements,without detailed, specific evidence, are insufficientto establish supervisory authority. Golden CrestHealthcare Center, 348 NLRB at 731; Lynwood Manor,350 NLRB 489, 490 2007.

Like the other statutory indicia of supervisory status,the authority to assign and responsibly to direct otheremployees are not determinative of supervisory statusunless they are exercised using independent judgment.To exercise “independent judgment,” an individual mustact or effectively recommend action “free of the controlof others,” using a degree of discretion rising above “themerely routine or clerical.” Oakwood Healthcare, 348NLRB at 693.In Oakwood Healthcare, 348 NLRB at 689, the Boardexplained that assignment means designating an employeeto a place such as a location, department, orwing, appointing an employee to a time such as a shiftor overtime period, or giving an employee significantoverall duties as opposed to ad hoc instructions that theemployee perform a discrete task. There must be specificevidence that a putative supervisor “has the abilityto require that a certain action be taken; supervisory authorityis not established where the putative supervisorhas the authority merely to request that a certain actionbe taken.” Golden Crest Healthcare Center, 348 NLRBat 729.The Board in Oakwood Healthcare, 348 NLRB at 691,also interpreted the meaning of the phrase “responsiblyto direct”: “If a person on the shop floor has ‘men underhim,’ and if that person decides ‘what job shall be undertakennext or who shall do it,’ that person is a supervisor,provided that the direction is both ‘responsible’ and carriedout with independent judgment.” The Board furtherheld that, for direction to be “responsibl[e],” the persondirecting the performance of a task must be accountablefor its performance. To establish accountability for purposesof responsible direction, the party with the burdenof proof must show that “the employer delegated to theputative supervisor the authority to direct the work [ofothers] and the authority to take corrective action, if necessary,”and also that “there is a prospect of adverse consequencesfor the putative supervisor” if the putativesupervisor “does not take these steps.”12 Id. at 692. Evidenceof actual accountability must be present to proveresponsible direction. Alstyle Apparel, 351 NLRB 1287,1287 2007; Golden Crest Healthcare Center, 348 NLRB at 731.B.We find that neither the crew dispatchers nor line controllers are statutory supervisors.

via Adjunct Law Prof Blog: NLRB Issues Primer On Supervisory Status.

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NLRB launches webpage describing Protected Concerted Activity | NLRB

The National Labor Relations Board today made public a webpage that describes the rights of employees to act together for their mutual aid and protection, even if they are not in a union.

The page, at http://www.nlrb.gov/concerted-activity, tells the stories of more than a dozen recent cases involving protected concerted activity, which can be viewed by clicking points on a map. Among the cases: A construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; an engineer at a vegetable packing plant fired after reporting safety concerns affecting other employees; a paramedic fired after posting work-related grievances on Facebook; and poultry workers fired after discussing their grievances with a newspaper reporter.

Some cases were quickly settled after charges were filed, while others progressed to a Board decision or to federal appellate courts. They were selected to show a variety of situations, but they have in common a finding at some point in the NLRB process that the activity that the employees undertook was protected under federal labor law.

The right to engage in certain types of concerted activity was written into the original 1935 National Labor Relations Act’s Section 7, which states that:  “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection, and shall also have the right to refrain from any or all such activities.”

That right has been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court over the years. Non-union concerted activity accounts for more than 5% of the agency’s recent caseload.

via NLRB launches webpage describing Protected Concerted Activity | NLRB.

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