Category: National Labor Relations Board (NLRB)
Worklaw® Network firm Shawe Rosenthal recently reported one more ridiculous decision by the NLRB (I wonder what their workplace must be like given their approach to work). No surprise, what most of us would think is a decent rule…really isn’t! Fact is, it is getting ever harder to draft workplace conduct rules…even for the lawyers. Of course by the time some of these decisions make it around to the Federal Court system they are often overturned. Do they really think that employees consider these rules before deciding on whether to raise legitimate concerns about work conditions? Is “disruption” really necessary to voice one’s concerns? In this wishy-washy decision the ALJ stated “Because the Employer’s prohibition does not define or limit the meaning of “disruption” or state that it is not intended to refer to Section 7 activity, I find that employees would reasonably interpret it to outlaw some such activity.” There was no evidence presented at all that it in fact had such a chilling effect! Lastly, it is clear the NLRB does not want employers talking employees out of unionization efforts because of the financial impact it may have on the company. Better to pretend there is no real impact and who cares if it makes a thin margin business impossible to run after being unionized. While in the end the company and its employees may lose, the union and its officers will call it a win…at least for them.
It is clear that the union and Purple Communications have been at odds. The current case emanates from a unionization effort in California. You will note that the branches of the company targeted had 30 and 47 employees. For example see http://mediaworkers.org/asl-interpreters-at-purple-begin-fight-for-a-fair-contract/
NLRA and Work Rules
October 30, 2013
In the latest decision addressing the limits on employer work rules, an Administrative Law Judge (ALJ) ruled that a policy prohibiting employees from “[c]ausing, creating, or participating in a disruption of any kind during working hours on Company property” was overly broad and interfered with employees’ Section 7 rights to engage in protected concerted activity under the National Labor Relations Act (NLRA). In Purple Communications, Inc. and Communications Workers of America, AFL-CIO, the ALJ found that the reference to “disruptions” was so general that it could cover protected activity. In addition, the reference to “working hours” was different from a potentially lawful reference to “working time,” since working time is specific to each employee, while working hours could refer to all hours of operation for the employer, which would include employees’ own non-working time, such as meal periods and other breaks. Also, the use of “causing” and “creating” suggested that employees might be disciplined for engaging in protected activities away from the workplace and during non-working time, if those activities were then linked to a workplace disruption. This case further illustrates the heightened and extra-sensitive focus the NLRB is bringing to the specific language of workplace policies.
The National Labor Relations Board (NLRB) announced the launch of a new mobile app, available free of charge for iPhone and Android users. The app provides employers, employees and unions with information regarding their rights and obligations under the National Labor Relations Act.
“The National Labor Relations Act guarantees the right of workers to join together, with or without a union, to improve their working lives,” notes NLRB Chairman Mark Gaston Pearce. “The promise of the law can only be fulfilled when employers and employees understand their rights and obligations. With this app, we are using 21st Century technology to inform and educate the public about the law and their rights.”
Last year, the NLRB received more than 82,000 public inquiries regarding workplace issues. “It is clear that the American people have questions about the law,” Pearce said. “This app can help provide the answers.”
The app provides information for employers, employees and unions, with sections describing the rights enforced by the National Labor Relations Board, along with contact information for NLRB regional offices across the country. The app also details the process the NLRB uses in elections held to determine whether employees wish to be collectively represented. Chances are if you are an employer you want to be familiar with this program. I just downloaded it to my iPhone.
Each month, an average of 2,000 unfair labor practice charges and 200 representation petitions are filed with the NLRB. In 2012, the NLRB collected more than $44 million in backpay or the reimbursement of fees, dues and fines. More than 1,200 employees were offered reinstatement as a result of NLRB enforcement efforts.
While much is being made about the NLRB aggressively enforcing Section 7 and 8 employee rights, the fact is the California Labor Code, and maybe that your state as well, carries similar provisions:
232. No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing the amount of his or her wages.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose the amount of his or her wages.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses the amount of his or her wages.
232.5. No employer may do any of the following:
(a) Require, as a condition of employment, that an employee refrain from disclosing information about the employer’s working conditions.
(b) Require an employee to sign a waiver or other document that purports to deny the employee the right to disclose information about the employer’s working conditions.
(c) Discharge, formally discipline, or otherwise discriminate against an employee who discloses information about the employer’s working conditions.
(d) This section is not intended to permit an employee to disclose proprietary information, trade secret information, or information that is otherwise subject to a legal privilege without the consent of his or her employer.
Bottom line: If an employee complains about working conditions talk to a lawyer before you reprimand or fire them!
Bottom line is it’s now more difficult to withhold testimony of an employee witness in a union hearing, even if the underlying information was provided to an employer in confidence. You can read the NLRB’s press release here. Employers are faced with the reality that in case after case it is ever more difficult to protect company information with a vigorous NLRB marching to a union agenda!
Recently, the National Labor Relations Board issued its first binding decision about employees’ rights under a common social media policy. In a recent case involving Costco Wholesale Corporation, the NLRB ruled that Costco’s online communications policy violated employees’ Section 7 rights under the National Labor Relations Act (NLRA). Please click here to read the article in its entirety.
In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:
- Where witnesses may need protection
- Where evidence is in danger of being destroyed
- Where testimony is in danger of being fabricated
- Where the is a need to prevent a cover-up
It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.
As one of its penalties, the company was required to post the following notice:
Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.
Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.
Here is a link to a memo from the Worklaw® Network firm Elarbee Thompson which should scare the bejesus out of any non-union employer. The current administration is clearly attempting to restructure the workplace. What it was not able to do by legislation it is now attempting to do through administrative fiat. We’ll have to see how the circuit courts respond to any claims filed. Until then it is employer beware!
NLRB Acting General Counsel Lafe Solomon today issued a third report on social media cases brought to the agency, this time focusing exclusively on policies governing the use of social media by employees.
The Operations Management Memo details seven cases involving such policies. In six cases, the General Counsel’s office found some provisions of the employer’s social media policy to be lawful. In the seventh case, the entire policy was found to be lawful.
Provisions are found to be unlawful when they interfere with the rights of employees under the National Labor Relations Act, such as the right to discuss wages and working conditions with co-workers.
“I hope that this report, with its specific examples of various employer policies and rules, will provide additional guidance in this area,” Mr. Solomon said in releasing the memo. Two previous memos on social media cases, which involved discharges based on Facebook posts, issued in January 2012 and in August 2011.
Note: we will review this memo and do an analysis on it by next week!