After years of stringent oversight, the National labor Relations Board (“NLRB”) is now loosening the reigns over workplace rules.

The Office of the General Counsel of the NLRB recently issued an advice memo analyzing the social media policy of Kumho Tires, a Georgia-based tire manufacturer.  The General Counsel found the employer’s policy was facially lawful under the NLRB’s decision in The Boeing Company, 365 NLRB No. 154, and therefore the employer did not violate Section 8(a)(1) by firing the employee for violating the policy.

The discharged employee was active in a union organizing campaign taking place at the time and posted a photo on Facebook in a forum for union supporters. The photo was of a team leader’s bonus request form seeking a bonus for “non-union support.”

The employer determined the employee violated their social media policy that restricts employees from posting “trade secrets and private or confidential information,” and the employee was brought in and summarily discharged.

While the advice memo found the employee was engaged in concerted activity by posting the photo in the forum, it also found the conduct was not protected in this case because the employee knew the photograph was improperly obtained. A coworker had taken the bonus request form off the desk of a supervisor before sharing it with the employee to post.  Therefore, because the employee’s conduct was not protected, the discharge was lawful.

This case should provide insight to employers as to how the General Counsel will interpret workplace policies moving forward under Boeing, specifically those relating to social media.

An analysis of the NLRB General Counsel’s Memorandum

Introduction

On June 6, 2018, the National Labor Relations Board’s (“NLRB”) General Counsel (“GC”) released a memorandum providing guidance on the NLRB’s recent decision in The Boeing Company, 365 NLRB No. 154. When responding to unfair practice charges involving employer handbook rules, the memo provides employers with an easy to follow roadmap to evaluate the legality of employer handbook language and rules.

Continue Reading How to Analyze Employer Handbook Rules in Light of <i>Boeing</i>

 

For a number of years now, since the Missouri’s Supreme Court’s 2007 decision in Independence NEA v. Independence School District, there has been a great deal of confusion regarding the collective bargaining process in the State of Missouri for public employees.  All processes for those employees that were specifically excluded from the statutory procedures of the State Board of Mediation were subject to what various circuit courts believed to be the appropriate procedure in their various jurisdictions.  Needless to say, litigation is not the most efficient way of developing a system for determining appropriate bargaining units, election procedures and collective bargaining guidelines.  The new legislation fills many of those gaps, in particular, the scope of employees covered is greatly expanded.

The procedures are very similar to that set forth under federal law. However the public sector is unique, so there are distinctions, the primary one being that voluntary recognition is explicitly noted to be unlawful, hence there must be an election process for every public bargaining unit in the state.  Indeed, even currently “certified” labor organizations must be recertified by an election procedure conducted by the State Board of Mediation and the failure to timely schedule such recertification will result in automatic decertification.  This process of recertification must also be repeated every three years following initial certification.

In terms of the collective bargaining process, the meetings between the public body and the labor organization are subject to the Sunshine Law and therefore cannot be closed, however the public body may still close meetings and records that are conducted or generated as part of an internal planning and strategy process. The statute also provides certain requirements in terms of topics that must be included in any public body collective bargaining agreement, including specific language regarding management rights, right to work, picketing, strikes, budget shortfalls, and the term of the agreement, which is limited to three years, except for non-economic provisions, which can go beyond three years.

In conjunction with these procedures, there are a number of financial disclosure obligations set forth in the new statute and those disclosures, along with other mandated provisions of the statute, will probably be subject to attack by the unions in this state as to whether or not they are constitutional. However, most of these provisions have already been vetted by other states, hence it is unlikely that any such attacks will be successful.

The United States Supreme Court settled a controversy that had been brewing for half a decade as to whether the Federal Arbitration Act (“FAA”) made enforceable individual agreements to arbitrate employment-related claims in the face of the National Labor Relations Act (“NLRA”) which is seen to protect individuals’ rights to join together and participate in protected “concerted activity” under Section 7 of the NLRA. In a 5-4 decision, written by Justice Neil Gorsuch, the Court found such class or collective action waivers in arbitration agreements to be enforceable and overturned the decision of the Seventh Circuit in Epic Systems Corp. v. Lewis, (7th Cir. 2016), while resolving a split in the Circuits on this issue. With the resolution of this uncertainty, many other employers may consider individual arbitration agreements, waiving class or collective action, for their employees. Continue Reading A Significant Victory for Employer Use of Individual Arbitration Agreements

Husch Blackwell recently issued a legal alert regarding the decision by the U.S. Supreme Court to strike down federal gambling prohibition. The decision was handed down in a 6-3 opinion on May 14, 2018. A little over a week later, our Rudy Telscher talks with Katie Strang of The Athletic to discuss the impact the decision by SCOTUS will have on the MLB, the players’ union and labor relations as a whole.

Rudy is a Partner in Husch Blackwell’s St. Louis office and has experience as lead counsel in CDM Fantasy Sports v. Major League Baseball, in which his team made new law in turning back Major League Baseball’s attempts to monopolize the $1.5 billion per year fantasy sports industry in proceedings from the district court through Supreme Court.

The Athletic article answers the question, “How much baseball betting will we actually see?”

 

Last week, the U.S. Court of Appeals for the D.C. Circuit reversed and remanded a pro-employee Board decision concerning an employee who had been discharged based on the “disparaging content” of the testimony he made before state legislators.

Back in October 2012, a bargaining unit employee of Oncor Electric Delivery Company (Bobby Reed) testified before a Texas senate committee that had been tasked with studying the impact of utilizing digital metering devices installed in customer homes by utility companies like Oncor. At the time of Mr. Reed’s testimony before the committee, Oncor and the union were engaged in collective bargaining, and Mr. Reed had informed Oncor that he would testify about the digital meters if the union did not obtain a favorable result in the collective bargaining. When bargaining stalled, Mr. Reed testified at the hearing, during which he stated that the digital meters were causing damage to customers’ homes.

Oncor investigated Mr. Reed’s claim about the digital meters causing damage to customer homes and determined this assertion was incorrect. As a result, Oncor terminated Mr. Reed for providing false testimony. The National Labor Relations Board subsequently found that the discharge violated Section 8(a)(3) of the National Labor Relations Act, as it constituted interference with Mr. Reed’s protected union activities. Oncor appealed to the D.C. Circuit.

In reversing the Board’s decision and remanding, the Court based its decision on the Board’s woefully deficient analysis under the Jefferson Standard test. Under that test, disparaging statements made to third parties (about an employer) are protected if:  (1) the employee making the statement indicates the communication is related to an ongoing dispute between the employees and the company; and (2) the communication is not so disloyal, reckless or maliciously untrue as to lose the Act’s protection. In its decision, the Board (admittedly) failed to address the first requirement.  Accordingly, the Court found the Board’s reasoning “too opaque to resolve whether it is supported by substantial evidence.”

Thus, the Court remanded the matter back to the Board for further proceedings, where the primary issue will be whether Mr. Reed’s testimony provided an adequate indication of its connection to Oncor’s labor dispute with the union. Importantly, the Court – in providing what it called “guidance for the remand” – analyzed the content of Mr. Reed’s testimony, as well as the surrounding context, and rejected a number of the NLRB’s arguments as to whether the testimony sufficiently signaled any connection to the actual labor dispute.

Oncor – and employers in general – have good reason to hope for a favorable result on remand. With the recent change to a Republican majority, the five-member Board has shifted ideologically to a more pro-employer lineup. And on remand, the Board has been instructed by the Court to – as part of determining the merits issue concerning Mr. Reed’s testimony – clarify which party bears the burden on the first requirement of the Jefferson Standard test (an issue the Board has never previously decided). As a result, the Board will not only be determining the specific fate of Oncor in this case, but will also be impacting the future application of Jefferson Standard to all employers who discipline or discharge employees for disloyalty or disparaging statements.

 

From Justice Kagan’s observation that a decision in favor of the plaintiff could affect millions of public sector workers to Justice Alito’s surprise at seeing a union brief include an argument that the Constitution originally did not grant public employees free speech rights, the U.S. Supreme Court was full of impassioned discourse during Monday’s oral arguments in Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. Despite the many insightful questions and comments directed to the four attorneys arguing before the Court, the voice of the one person each attorney was trying to convince was never heard.

Justice Gorsuch is likely the deciding voice at the conference table in Janus. The same issue – whether requiring public sector employees to pay union fees (“fair share” or “agency” fees) unconstitutionally compels speech – was previously before the Court in Friedrichs v. California Teachers Association. However, the Court was unable to enter a precedential decision because of a four-four split on the issue after Justice Scalia’s death. Now the question of whether to overturn Abood v. Detroit Board of Education, which allowed such fees in 1977, is again directly before a full Court.

A decision in favor of overturning Abood would mean that public sector employees could choose to stop paying agency fees. From the employee’s perspective, the ability to withhold those payments is a constitutional right because funding collective bargaining is inherently political speech. From the union’s perspective, fees that only fund collective bargaining over employment matters such as wages and benefits are analogous to an employee individually addressing those things to his/her government employer, which the Court has held is not constitutionally protected free speech.

A few of the Justices noted the consequences such a holding could have on existing collective bargaining agreements as a reason to uphold Abood, based on the principle of reliance on the former decision as a reason to uphold that precedent. In response, plaintiff’s counsel emphasized the predominance of this practice as a reason for reversing Abood, if it does not meet constitutional muster.

Justice Gorsuch has not been shy about participating in oral arguments during his tenure on the Supreme Court Bench. Thus, Monday’s silence in this important case was likely a tactical decision to listen, think, and analyze instead of asking questions that might stoke additional speculation about his views.

Because of that silence, we are left with interesting tidbits about Justice Kennedy’s argument preparation habits (apparently perusing a relevant 1961 concurrence the night before argument) and thoughts of whether a modern framework would change the result of Marbury v. Madison (Justice Breyer’s skepticism of applying a “modern framework” in this case led to his wondering if similar attempts would go back to the source of judicial review) but with little insight into the possible content of a majority or plurality opinion.

Husch Blackwell’s Labor and Employment team is monitoring the case and will provide you with a prompt analyze of the decision in Janus once it is released. Please contact the Labor and Employment team with any questions.

The National Labor Relations Board found that a union committed an unfair labor practice by repeatedly blocking ingress and egress to a hotel for periods of one to four minutes. The opinion provides details about the union’s picketing efforts as a part of an organizing campaign. The blockage occurred during at least ten separate occasions over the course of more than a month. The Board adopted the ALJ’s decision holding that the picketers’ actions of standing in front of vehicles for minutes at a time, many driven by hotel valets, attempting to enter and/or exit the hotel violated Section 8(b)(1)(A) of the National Labor Relations Act.

As the dissent notes, this decision is significant because there were no allegations of violence and because the blockage lasted such short periods of time. Regardless, the Board determined that the union’s repeated, intentional blockage of drivers, including employees, would reasonably tend to coerce or intimidate employees in the exercise of their Section 7 rights.

Although injunctive relief was not sought in this situation, the NLRB’s decision in Unite Here! Local 5 (Acqua-Aston Hospitality, LLC) provides management with support for prompt relief in similar circumstances. Contact Husch Blackwell’s Labor and Employment team with any questions or to discuss options for responding to union activity in your business.

As anticipated, the nationwide trend of enacting “right-to-work” (RTW) legislation has continued to grow – in the past few years alone, Indiana, Michigan, Wisconsin, West Virginia, and Kentucky have joined the growing list of RTW states. In these states, and the approximately twenty others that have adopted RTW legislation, employers are prohibited from requiring employees to join a union or pay union dues as a condition of employment. Although Missouri adopted RTW legislation in 2017, it is currently postponed and will be subject to a public vote in 2018.

Pundits have long claimed that over time, RTW laws tend to weaken a union’s bargaining power by slowing chipping away revenue and support from employees who do not wish to be represented and elect not to join the union. For example, Wisconsin – which was once among the strongest union states in the nation – has seen a drop in its private sector union membership from nearly 16% in 2009 to just 8.1% in 2016, which is below the national average hovering around 11%. Union membership has similarly dropped in most other RTW states over time.

Of course, RTW legislation does not prevent unionization of private sector workplaces. Employees still have the right of self-organization, the right to join, form, or assist labor organizations, and the right to engage in lawful, concerted activities for the purpose of collective bargaining or other mutual aid or protection.  Additionally, employees who are in the bargaining unit but do not pay union dues are still entitled to all the same benefits under the labor contract as their dues-paying counterparts. Despite these protections under federal law, adoption of RTW legislation at the state level has been and continues to be welcome news for employers nationwide.

 

On December 14, 2017, the National Labor Relations Board (the “NLRB” or the “Board”) overruled Obama-era precedent involving two highly controversial decisions governing employee handbooks and joint employment standards.

Earlier this year, President Trump appointed two Republicans to the five-member NLRB resulting in a 3-2 Republican majority for the first time in a decade.  As anticipated, the new “Trump Board” is beginning to dismantle a series of decisions that many believed to unfairly favor unions.

New Standard Governing Employee Handbooks

In a split 3-2 decision, the Board majority in  . overturned its 2004 Lutheran Heritage standard, which had been used in recent years to render countless employer policies and rules unlawful.  The former standard provided that a policy or rule is unlawful if employees could “reasonably construe” the language to bar them from exercising their rights under the NLRA, such as discussing terms and conditions of employment.  For the past several years, the Lutheran Heritage standard has been heavily criticized for failing to take into account legitimate business justifications associated with employer policies, rules and handbook provisions in addition to yielding unpredictable and sometimes contradictory results.  For example, the standard has deemed unlawful policies that require employees to “work harmoniously” or conduct themselves in a “positive and professional manner.”

Continue Reading NLRB Overturns Pro-Union Precedent Governing Employee Handbooks and Joint Employers