Labor Relations Law Insider

Target Becomes a Target

By Terry Potter on Posted in NLRB

On April 26, 2013, the NLRB issued a ruling which found certain no solicitation – no distribution policies of the retail outlet Target Corporation improper.  Per usual, these allegations developed as a result of an organizing campaign at the facility.  While a portion of the rule was found lawful, the following provisions were found unlawful by the Board:

Certain activities are prohibited at all times on Target premises.  Soliciting, distributing literature, selling merchandise or conducting monetary transactions, whether through face-to-face encounters, telephone, company mail or e-mail, are always off limits (even during meal and break periods) if they are:

  • For personal profit
  • For commercial purposes
  • For a charitable organization that isn’t part of the Target
  • Community relations program and isn’t designed to enhance the company’s goodwill and business

Obviously, Target was attempting to carve out certain exceptions pursuant to past NLRB decisions.  However, the Board found that the statement “for commercial purposes” was too ambiguous and, therefore, the rule could potentially “chill employees’ statutory rights.”  Also note that there was no evidence that the company had been applying the rule, it was simply maintaining the rule. 

In the second portion of the opinion, the Board found that a parking lot policy was lawful, overturning an Administrative Law Judge’s finding.  The policy stated as follows: 

Park in the area of the lot for team members.  Always lock your car.  Use the “buddy system” or walk in pairs when you leave at night.  It’ll make leaving safer.  After the store closes, you may be asked to move your car closer to the store for safety.  If you see people you don’t know loitering around the team member parking area, notify Assets Protection or your leader on duty immediately.  (Target is not responsible if your car is damaged or stolen while in the parking lot.)

The ALJ found the policy unlawful, indicating that it was possible that not all of the workers knew each other and because some employees may want to engage in union activity pre or post-shift in the parking lot, the policy violated the Act because it required the workers to inform the company of anyone who might be potentially engaged in union activities.  Surprisingly, the Board disagreed.  The panel found that the parking lot policy did not explicitly restrict Section 7 activity as there was no evidence the rule was promulgated in response to union activity, or that it had been applied to restrict the exercise of Section 7 rights. 

Finally, the Board provided a practical approach in terms of remedy.  Because the policies were contained in the company handbooks and their reproduction would obviously be quite costly if they had to be restated and redistributed, the Board allowed Target to create and distribute inserts, rather than completely reprint and redistribute the entire handbook.

NLRA Trumps Private Property Rights

By Terry Potter on Posted in National Labor Relations Act

On April 23, in Caterpillar Inc. v. NLRB, the Board found that the employer had violated Section 8(a)(1) and (5) of the Act by refusing a non-employee union representative access to the facility to conduct a health and safety inspection after a fatal accident.  In access case situations, the Board has historically reviewed the facts and circumstances under the standard articulated in Holyoke Water Power Company, 273 NLRB 1369 (1995), enfd 778 F. 2d  49 (1st Cir 1985).  The test is a relatively easy one: the Board is to balance the employer’s property rights vis a vis the employees’ right to be responsibly represented.  The Board found that the weak link in the employer’s argument was a long history of allowing third parties access to the facility.  Hence, denying access to the union was inconsistent with this provision.  But even more disturbing was the fact that, even though the Administrative Law Judge provided for the parties to bargain over an appropriate confidentiality agreement to protect the employer’s property interest in the remedy section, the Board found that inappropriate where, as in this situation, the employer failed to seek a protective order at the hearing over matters which it contended were confidential in support of its property interest.

In hindsight, the employer should have negotiated an access clause which would accommodate these concerns in the collective bargaining agreement in advance, rather than attempting to resolve them on an ad hoc basis.  The Board has recognized a union’s right to waive its rights under the Act for such access and they are relatively common clauses found in collective bargaining agreements to protect an employer’s property rights.  Takeaway: take a look at your own access clauses if something like this could affect your business.

NLRB Strikes Out Again Regarding Notice Posting Rule

By Terry Potter on Posted in NLRB

On May 7, 2013, the U.S. Court of Appeals for the District of Columbia Circuit ruled that the NLRB’s August 2011 Notice Posting rule was invalid.  Given that the Court had previously enjoined the implementation of the rule, such a ruling comes as no surprise.  However, the Court did not rule as to whether the Board had authority to promulgate such a rule, which is the normal standard of review in these situations.  Rather, the Court struck down the final rule because of the way it was to be enforced.  In particular, the Court took exception to the Board’s tolling of the statutory limitations period for an employee to file an unfair labor practice charge if the employer failed to post a notice.  Further, it found that a knowing and willful refusal to comply with the requirements of the notice posting might, by itself, be evidence of an unlawful motive in a case in which motive was an issue, even if the case was unrelated to the posting of the notice.  Accordingly, as the Court held that these enforcement aspects of the rule could not be severed from the remaining portions of the rule, the rule itself was found invalid. 

Unfortunately, given the grounds for which the Court found the rule invalid, the Board will likely take another attempt in drafting such a rule.  Note: a rule of a similar nature has been in place with respect to federal contractors for some time and this ruling does not impact those requirements.

NLRB to Take the Recess Appointment Scuffle to the Supreme Court

By Terry Potter on Posted in NLRB

When the D.C. Circuit issued its opinion in Noel Canning v. NLRB in January 2013, it caused representatives of labor and management across the country to put down their union by-laws and collective bargaining agreements and pick up another sacred text: the U.S. Constitution.  As reported here, the court invalidated President Obama’s recess appointments of three members of the NLRB, holding the appointments unconstitutional and throwing the legitimacy of the Board’s recent decisions into limbo.

This week, the NLRB issued a brief news release announcing that it will forego asking for rehearing by the entire D.C. Circuit, choosing instead to file a petition for certiorari with the U.S. Supreme Court.  The release states that the NLRB consulted with the Department of Justice before making the decision, demonstrating that Noel Canning’s significance extends well beyond the NLRB and has the full attention of the Obama Administration.

Given Noel Canning’s significant ramifications – affecting not only the legitimacy of the NLRB’s recent rulings but also the constitutional balance of power between the President the Congress – it is widely believed that the Supreme Court will grant the motion and hear the case at some point during the Court’s term beginning in October of this year.  The NLRB’s petition for certiorari is due April 25, 2013, but the Court’s decision on certiorari may not come for at least several months.  We will keep you posted on any new developments.

The NLRB’s choice not to request review by the entire D.C. Circuit may signal the Obama Administration’s recognition that it had only a slim chance of success before the whole court – where five of the eight judges likely to hear the case were appointed by Republicans.  All three of the judges joining the original panel’s Noel Canning opinion were Republican appointees.)

Interestingly, the D.C. Circuit currently has four vacancies, and President Obama’s attempts to fill them have been stymied by Senate Republicans.  Just last week, they once again blocked the confirmation of an Obama nominee that has been pending for over two years.  Another appointment has been pending for almost a year.  The D.C. Circuit, therefore, was a fitting forum for Noel Canning, which addressed the constitutionality of President Obama’s efforts to avoid the same senatorial gridlock that has hampered his efforts to fill the court.  One can only wonder whether his administration might have been willing to test the court en banc if his appointed judges were on the bench.

The D.C. Circuit, of course, enjoys a prominent place in labor law, as every NRLB decision can be appealed either in that court or in the circuit in which the alleged unlawful practice took place.  Also of note, four of the current Supreme Court Justices that the NLRB will ask to review the D.C. Circuit’s decision are alumni of that court – Chief Justice Roberts and Justices Ginsburg, Scalia, and Thomas.

Healthcare Still a Target for Organizing

By Terry Potter on Posted in NLRB

While union organizing is decreasing in so many other parts of the economy, healthcare remains a target.  The Service Employees International Union in particular continues in its efforts to organize healthcare facilities throughout the U.S.  A recent example as to how disruptive such actions can be is set out in a recent settlement agreement reached between University of Pittsburgh Medical Center and the Service Employees International Union Healthcare of Pennsylvania, through the NLRB.  The Union had been attempting to organize a number of employees since May of last year and, as a result, there were over 80 alleged unfair labor practice allegations filed against the hospital through December when a complaint issued against the hospital for such violations.  The primary focus of the allegations in the complaint were matters regarding how the hospital applied its e-mail and social media policies limiting solicitation among its employees and for improper discipline.  The settlement included reinstatement of two employees, expungement of certain disciplinary action taken towards other employees, and a revamping of the hospital’s e-mail and social media policies. 

To read NLRB’s news release on the settlement, click here.

Our Insight. Your Advantage. There is no question that training is a key element in preventing employers from being subjected to such pressure tactics by labor organizations.  If management is aware of the tactics used by unions to draw them into situations which foster the perception of value of labor organizations, then the risk is reduced that the wrong responses are made.  This includes not only how employees are disciplined but also how policies are applied.  In other words, it is all about risk management.  One of the biggest ways to manage risk is to have employees appropriately trained and ready for all contingencies that may have an impact upon the operations of their employer.

Why Can’t We All Play Nice? Obama’s Recess Appointments Struck Down

By Mikela T. Sutrina on Posted in Federal, Hot Topics, NLRB

On January 25, 2013, the D.C. Circuit Court invalidated President Obama’s three appointments to the National Labor Relations Board.   The decision in Canning v. NLRB not only calls into question the “recess appointment” power of the President, but could paralyze the NLRB by putting hundreds of decisions in jeopardy.

Presidents have made so-called recess appointments for decades.  The Constitution expressly gives this power to the President, allowing him to fill executive vacancies when the Senate is not in session.  President Obama did just that when he named three members to the NLRB in 2012.  Some argue that this power is used solely to avoid Senate confirmation (or more likely, rejection) of an appointment.  Others argue that it’s just plain necessary.

The D.C. Circuit did not stop at invalidating the NLRB appointments (and an appointment to the Consumer Financial Protection Bureau), but essentially removed the power in its entirety.  The ruling effectively held that the Senate was not really in recess when the appointments were made, and that President Obama exceeded his authority in naming the NLRB members at that time.  Further, the opinion suggests that true recesses need not ever happen, as the Senate could convene for a few days in a “pro forma” session, effectively putting the kibosh on any future Presidential recess appointments.

Sound melodramatic?  It’s not.  This is major, folks.  What this ruling means from a labor standpoint is that the big decisions the NLRB has put out this past year could be in jeopardy.  We’re talking social media policies, blanket confidentiality policies, at-will disclaimers . . . you name it.  We wait with baited breath for the inevitable challenge and political tug-of-war that will follow this decision.  Stay tuned.

Paying Your (Employees’) Dues

By Mikela T. Sutrina on Posted in Board Decisions, NLRB

On December 12, 2012, the NLRB reversed longstanding precedent in WKYC-TV, Inc., holding that dues checkoff provisions continue in force after the labor contract expires.  (“Dues checkoff”  is the act of deducting union dues from employees’ wages and remitting them to the union.)  This decision overruled Bethlehem Steel, 136 N.L.R.B. 1500 (1962), which for the prior 50-years held that a dues checkoff provision expires with the expiration of the collective bargaining agreement containing it.  The Board likened dues checkoffs to other mandatory subjects of bargaining, such as wages and hours.  Thus, an employer cannot unilaterally modify a dues checkoff provision without prior notice and a meaningful opportunity to bargain without violating Section 8(a)(5) of the NLRA.   Although there are other mandatory bargaining terms that do not survive an agreement’s expiration – think arbitration provisions and no-strike clauses – dues checkoffs do not involve voluntary waivers of rights.  In fact, dues checkoffs are more akin to other voluntary checkoff agreements, such as employee savings accounts, which create “administrative convenience” and “survive the contracts that establish them.”

With this ruling, the Board may have “significantly altered the playing field that labor and management have come to know and rely on,” as pointed out by the lone dissenter.  The dissent argued that commonsense and fifty years of success should compel Bethlehem Steel to stand.  The Board rejected the dissent’s argument, claiming its view is both “compelled by the Act” and “more faithful to its language and policies.”  We’ll be on the look-out for a challenge to this new rule in 2013.

Even though this decision overrules fifty years of NLRB precedent, the Board will only be applying the new rule prospectively and it will not apply to pending cases.  Such a thing would be entirely unjust.

Recent NLRB Administrative Decision Addresses a Union’s Liability for Its Facebook Page

By Julianne Story on Posted in ALJ Decisions, NLRB, Social Media, Strikes, Uncategorized

Recently, the NLRB has issued a number of decisions addressing social media in the workplace as it pertains to employers.  Last month, however, an NLRB judge rendered a decision addressing a Union’s potential liability and responsibilities for social media activities on its own Facebook page.  Interestingly, the judge addressed the posts and comments of the Union’s members, rather than the Union itself.  As a result, questions remain regarding whether this analysis applies only to a union, or whether it will apply similarly to an employer and the acts of its employees.

In Amalgamated Transit Union, Local Union No. 1433, AFL-CIO, Case 28-CB-78377, JD(ATL)-33-12 (ALJ Op. Nov. 28, 2012), the Union, which represents a bargaining unit comprised of bus operators, was charged with violating the National Labor Relations Act (“NLRA”) for the threatening statements made by the Union’s members on the Union’s Facebook page.  The government alleged the Union had a duty to disavow any threatening statements, and because it failed to do so, its failure amounted to a restraint on the employees’ Section 7 right not to engage in union activities, in this case, a strike.

Regarding the threats, individual Union members threatened employees with less favorable union representation and violence if they refused to participate in the labor strike.  For instance, on the first day of the strike, a Union member posted:

  • “THINKING of crossing the line.  THINK AGAIN!”
  • “THINK about the future.  When WE return, YOU will be gone.  It is a fact that in union strikes across the nation that within six months after the strike ends that 90% of the workers that crossed the line are no longer employed there.”
  • “THINK that the union will protect you.  They may have to represent you, but will they give it 100%.”

In response to this post, one employee commented that he suffered from an eye condition and could not afford to lose his insurance because of the strike.  In response, a Union member commented that if the employee crossed the picket line he would “lose his eyesight” from two black eyes.  On the second day of the strike, the Union’s Vice President discussed holding a picket line at the hotel where the company’s replacement employees were staying.  In response, one member commented, “[c]an we bring the Molotov cocktails this time?”

The government alleged that the Union had a duty to disavow these threats and relied on case law for the proposition that a Union is responsible for the acts of its members on a picket line when it fails to take corrective action.  Thus, the government argued, because the website is an extension of the picket line, the Union was responsible for disavowing the threats made on its Facebook page.  Failure to do so constituted a violation of the NLRA.

The judge rejected this argument and found marked differences between an actual picket line and a website.  For instance, whereas a picket line communicates a public message from a Union, a Facebook page is private.  Additionally, the judge found that hundreds of thousands of websites contain discussions that do not express the opinions of the host.  Moreover, the judge found that requiring the union to disavow the posts amounted to compelled speech and implicates the Union’s First Amendment free speech concerns regarding the right to refrain from speaking.  For these reasons, the judge found the Union had no duty to disavow the threatening posts and therefore had not violated the NLRA.

While this decision is good news for labor unions, it is unclear whether the NLRB will hold an employer to the same standards with respect to a company’s Facebook page.  Notably, the allegations against the Union did not involve any officers or agents of the union, but rather, its individual members.  Accordingly, until the NLRB decides this issue in the context of an employer’s social media page, employers must be diligent in monitoring not only the “official” posts on their social media websites, but also the contents of posts made by employees or other third parties.

All Good Things Must Come to an End

By Mikela T. Sutrina on Posted in Bargaining, Public, Strikes

It’s a myth that Twinkies last forever.  And just as these childhood staples will expire, it appears that the iconic brand behind them has also finished its run.  Hostess filed for its second bankruptcy in January and has since been trying to come out from under a mountain of debt.  These efforts came in the form of negotiating new contracts with members of the Bakery, Confectionary, Tobacco Workers and Grain Millers International Union (BCTGM).  Sadly, on Friday November 16, 2012, Hostess announced “It’s over,” and that it would be closing its doors and shutting down.  The death knell for the financially struggling snack cake brand came on November 9th when members of BCTGM went on strike, effectively crippling Hostess.  As reported by the Associated Press, the nationwide strike came after Hostess proposed a new union contract, which cut a “$100 million a year contribution to pension costs to workers to $25 million a year, in addition to wage cuts and a 17 percent reduction in health benefits.”  The union rejected this offer, went on strike, and Hostess waved the white flag.  Twinkie lovers felt a glimmer of hope on Monday November 20, when Hostess and the union attempted mediation to resolve the conflicts plaguing the company.  Alas, mediation failed and Hostess has moved forward with its plan to liquidate.  Hostess’s liquidation means the closure of 33 bakeries, 565 distribution centers, and 570 bakery stores nationwide, not to mention the thousands of jobs lost.  In the aftermath, people are paying $100 for a box of Twinkies on EBay to preserve childhood memories.  Remember…they don’t last forever.

“Let’s Give Them Something to Talk About” – Confidentiality in Workplace Investigations

By Mikela T. Sutrina on Posted in Board Decisions, Court Cases & Legislation, National Labor Relations Act, NLRB

The NLRB’s recent decision in Banner Health System, 358 NLRB No. 93 (2012) has tongues wagging, and not just in the blogsphere.  In a controversial decision, the NLRB struck down an employment policy requiring employee confidentiality during workplace investigations.  The Board held that this type of “blanket” policy potentially prevents employees from engaging in protected speech, thus interfering with their Section 7 rights.  The Board held that a complaining employee must be allowed to discuss workplace concerns and this right is not outweighed by generalized concerns about the integrity of an investigation.

In its decision, the Board addressed the type of employer concerns that might justify a confidentiality policy under the NLRA.  In particular, the Board suggested that in order to “minimize the impact on Section 7 rights,” an employer should determine if (1) witnesses needed protection, (2) evidence might be destroyed, (3) testimony might be fabricated, or (4) when necessary to prevent a cover up.  The Board stated, however, that Banner Health System’s “blanket approach clearly failed to meet those requirements.”  Apparently, employers must make a case-by-case individualized determination before asking employees to keep quiet about an investigation.

The EEOC’s position on these policies is decidedly unclear.  Law blogs across the country are discussing a “pre-determination” letter sent from the Buffalo, NY office.  This letter warned an employer that its policy that employees who participate in internal investigations could be subject to discipline is too broad and thereby unlawful.  The EEOC appears to be concerned that broad confidentiality policies will prevent employees from discussing harassment or discrimination with management or even the EEOC during internal investigations.  However, this letter is one letter from one office, and we will stay tuned for more EEOC guidance.

What this means to you

In the meantime, employers should avoid “blanket” confidentiality policies and promptly conduct internal investigations to ensure the integrity of the investigation remains intact.