On May 17, 2019, the Office of the General Counsel (GC) released an advice memorandum dated December 20, 2018 signaling the National Labor Relations Board’s (Board) intent to continue to overturn precedent. Continue Reading NLRB Poised to Exterminate the Cat and Rat, According to NLRB Advice Memo
Memorandum 19-05, issued by the NLRB Division of Operations Management of the Office of the General Counsel in March 2019, gives Regional Directors a new tool to expedite cases when a charged party fails to cooperate with an unfair labor practice (ULP) investigation. Instead of relying on investigative subpoenas to acquire additional information, Regional Directors may issue complaints based on “evidence available.” The new authorization is designed to reduce case processing time consistent with the General Counsel’s major objectives as described in the December 2018 memorandum, GC 19-02.
Discretionary authority to issue complaint based on party’s lack of cooperation
Under the terms of memorandum 19-05, if a charged party fails to fully cooperate in a ULP administrative investigation, Regional Directors have the discretionary authority to determine 1) whether to issue a complaint based on evidence available, and 2) whether the failure to cooperate is significant. A significant lack of cooperation is described as including a complete failure to respond or a failure or provide “key information.” It would not include “failures to produce a witness or witnesses where credibility disputes may dictate the issuance of a complaint.” A determination of a significant lack of cooperation will be factually dependent and may take into consideration the severity of the ULP allegations as well as the impact on commerce.
If the Regional Director determines that a charged party’s failure to cooperate is significant, the board agent will not need to seek an investigative subpoena to acquire the information requested so long as a complaint could be issued based on evidence available. Under such circumstances, the Regional Director may include a footnote after the second sentence of the first paragraph of the complaint noting the significant lack of cooperation as follows:
On (dates), the Region requested that Respondent cooperate in the administrative investigation of the ULP charge(s) conducted prior to issuance of the instant complaint. Respondent failed to fully cooperate in the investigation by refusing to furnish certain documents relevant to the disposition of the charge(s).
Memorandum 19-05 will not affect the issuance of trial subpoenas. Trial subpoenas will still be sought to compel information regardless of the existence of a determination of a significant lack of cooperation to issue the complaint.
Effect of memorandum 19-05 on charged party
The use of investigative subpoenas varies greatly among the Regional Offices. Some use them as a matter of course and others rarely use them. As always, a charged party must weigh the value of working with the Region to adequately comply with requests for information while also protecting client information that may be sensitive or beyond the scope of the ULP charges against the consequences of having a complaint filed based on a determination of lack of significant cooperation.
On April 2, 2019, in a 3-1 decision split along party lines, the Trump administration’s National Labor Relations Board (Board) appointees significantly narrowed the circumstances under which a successor employer will be construed as a perfectly clear successor and forced to forfeit its right to set initial employment terms. The decision, Ridgewood Health Care Center Inc., and Ridgewood Health Services, Inc., overrules precedent which had established that a successor employer which uses discriminatory hiring practices to target less than all of the bargaining unit’s employees and deprives the union of majority status is a perfectly clear employer. The decision allows a successor employer to retain its right to unilaterally set the initial terms of employment despite its discriminatory actions that directly affect less than all of the predecessor employees.
The National Labor Relations Board has long recognized Weingarten rights—the rights to request assistance from union representatives during investigatory interviews by employers. Historically, the Board has limited the types of individuals that can serve in this union representative’s role to union officers that are not legal professionals. However, in the Board’s recent decision in Pacific Architects and Engineers Incorporated (“PAE”), the Board loosened this restriction and, for the first time, allowed “a union attorney” to act as an employee’s union representative.
Despite this pro-employee result on the union representative issue, the PAE decision also included an employer-friendly determination. Specifically, the Board reversed the ALJ’s finding that the employer violated the National Labor Relations Act (the “Act”) where the employer’s investigator limited union representatives’ participation during an investigatory interview. The Board found that although a union representative may not be required to “sit silently like a mere observer,” having some limitations on the representative’s speaking during portions of the interview is still consistent with the principles delineated in Weingarten.
In PAE, an employee serving as union president learned about the suspension of fellow employees and confronted one of the decision makers on the suspensions, questioning his authority to make the suspension decision. Offended by the employee’s “insubordinate” action, the decision maker filed a complaint with the employer and which suggested that some type of action should be taken against the employee. During the investigation of the complaint, the complained-of employee repeatedly informed the employer that the union attorney was available and ready to act as his union representative. However, the employer responded that because it was a disciplinary matter, the union attorney was not an “appropriate” union representative, and the employer told the employee to choose from a list of acceptable representatives comprised of union officers). The employee begrudgingly agreed and attended an investigatory meeting with two union officers as his representatives.
To maintain order during the meeting, because seven people were trying to talk at the same time, the investigator led the meeting as follows:
- The investigator instructed everyone to stop talking and insisted that all questions must come through him, as he was running the inquiry.
- Then, the investigator instructed the employee to prepare a written statement about the underlying confrontation with the decision maker and did not allow the representatives to ask any questions at that time.
- After the employee provided his written statement, a break in the meeting was held, and the employee was permitted to consult with his union representatives.
- The investigator then conducted a question-and-answer session, wherein the investigator read written questions aloud to the employee, the employee wrote down answers, and the investigator then read the answers aloud. The union representatives were not permitted to participate during this portion of the meeting.
- Following the aforementioned question-and-answer session, the union representatives were permitted to ask questions.
The Board’s Decision
The Board found the employer’s refusal to allow the union attorney to attend the investigation meeting to be a violation of the employee’s Weingarten rights. Although the employee was not completely deprived of his right to representation – he had two union officers present – the Board agreed with the ALJ that, for purposes of Weingarten, the union attorney could serve as a union representative because the attorney was designated by the union as the employee’s representative and was, in fact, an agent of the union. Although the Board did not expressly reiterate the ALJ’s rationale on this point, it is worth noting that the ALJ had emphasized that Weingarten provides a right to a representative that is an agent of the labor organization and generally provides a right to choose the specific union representative, if that representative is available.
Regarding the investigator’s ability to control the meeting, however, the Board sided with the employer. Specifically, the Board found that the investigator’s instructions were consistent with Weingarten principles: i.e., although a representative is to participate and assist the employee during an investigatory interview, an “employer  is free to insist that he is only interested  in hearing the employee’s own account of the matter under investigation.”
The Board went on to distinguish its decision here from the Lockheed Martin Astronautics decision, wherein the employer was found to have violated the Act by telling a union representative to “shut up” at the start of a three-person meeting. The Board noted that, in contrast to Lockheed Martin, it was finding no violation of the Act in PAE because: (1) the investigator told “everyone,” not just the union representatives, to stop talking in the meeting, which had seven “unruly” participants; (2) he gave such instruction precisely when he sought to elicit the employee’s written statement about the confrontation, which was “the entire point of the interview”; (3) he allowed the employee to consult with his union representatives; and (4) he permitted the representatives to ask questions after the investigator completed the question-and-answer session.
Finally, it is worth noting that the Board also reversed the ALJ’s finding that the investigatory interview was coercive in that it questioned the employee’s protected union activity (the confrontation of the decision maker). Recognizing the employer’s legitimate interest in investigating the issue, the Board found that the investigation was “reasonably tailored” and “clearly related to” the employer’s ability to effectively operate its business, and thus not a violation of the Act.
The Board’s decision in PAE provides employers with important insights as to how they should conduct investigatory meetings. In sum: (1) employers cannot refuse to allow union attorneys to serve as the “union representative”; (2)employers maintain some control over the flow and structure of investigation meetings, including related to when the union representatives may speak; and (3) investigation interviews do not necessarily violate the NLRA when employers’ questions relate to the employees’ protected union activities, so long as such investigation is reasonably tailored to the employers’ legitimate business interests.
Unions commonly utilize clarification petitions to invoke accretion principles and try to bypass election procedures. However, the National Labor Relations Board’s recent decision in Recology Hay Road and Teamsters Local 315 illustrates how employers can avoid employee accretion into existing bargaining units by emphasizing the lack of interchange between bargaining unit employees and the non-bargaining unit employees at issue. Interchange occurs when employees alternate or transfer between positions.
Although the National Labor Relations Act was initially established to assist unions in organizing employees, its scope is much broader as it also protects employees’ rights to engage in “protected concerted activity.” The NLRB’s interpretation of what constitutes protected concerted activity has fluctuated over the years and, in particular, under the Obama administration it expanded significantly beyond its original scope. In the Board’s recent decision of Alstate Maintenance, LLC the Board acknowledged a need to reset the standard as set forth in the Meyer’s Industries cases from the 1980’s, in particular, with respect to the scope of what is considered concerted activity. In Meyers I, the standard was specified that in order to be concerted such activity must “be engaged in with or on the authority of other employees and not solely by and on behalf of the employee himself.” In other words, individualized gripes or concerns are not sufficient. And while this definition will no doubt be litigated further, the Board’s analysis in Alstate Maintenance, LLC provides guidance on what constitutes the current Board members’ understanding of concerted activity, which is a return to a more reasonable interpretation.
In Alstate Maintenance, LLC, a skycap employee (“Greenridge”), while working with three other skycaps, was informed by a supervisor that they were to assist with a soccer team’s equipment that was approaching the airport. The single employee then remarked, “We did a similar job a year prior and we didn’t receive a tip for it.” When the van arrived the skycaps walked away and did not provide assistance initially; but after the passengers entered the facility some of the skycaps began assisting them.
Importantly, the General Counsel’s case never alleged that the skycaps “walking away” from the van upon its arrival was part of the purported concerted activity. Rather, the General Counsel merely argued that the single employee’s statement constituted protected concerted activity. As was stated in the post-hearing brief by the General Counsel: “ . . . Greenridge was discharged because he engaged in protected concerted activity when he raised concerns to his direct supervisor in front of his coworkers about the possibility that he and his coworkers would not receive a tip for a job assignment.” Contrary to the General Counsel, the Board found that there simply was not a group complaint brought to the attention of management. There was no evidence, for example, that the tipping habits of soccer players had been a topic of conversation among the skycaps prior to Greenridge’s statement. Nor did Greenridge’s use of the word “we” supply the missing group activity evidence. Indeed, the Board agreed with the Administrative Law Judge, who credited Greenridge’s testimony in this regard, finding that his remark was simply an off-hand gripe about his belief that French soccer players are poor tippers. The Board also discounted the General Counsel’s position that the comment qualifies as concerted activity because Greenridge made it in a group setting in the presence of his coworkers and his supervisor and used the first person plural pronoun “we”.
The Board distinguished a number of other cases in its decision, citing back to Meyers II, which required “record evidence that demonstrates group activities in order to find an individually urged complaint as a truly group complaint and that such an analysis must be based on the totality of the record evidence.” In particular, the Board stated that
“the fact that a statement is made at a meeting in a group setting or with other employees present will not automatically make the statement concerted activity. Rather to be concerted activity an individual employee’s statement to a supervisor or a manager must bring a truly group complaint regarding a workplace issue to management’s attention or the totality of the circumstances must support a reasonable inference that in making the statement the employee was seeking to initiate, induce or prepare for group action.”
The Board even provided a checklist for further review of what might constitute concerted activity in these circumstances: 1) was the statement made in an employee meeting called by the employer to announce a decision affecting wages, hours, or some other term or condition of employment; 2) did the decision effect multiple employees attending the meeting; 3) did the employee who speaks up and responds to the announcement do so to protest or complain about the decision, not merely to ask questions about how the decision had been or will be implemented; 4) did the speaker protest or complain about the decisions’ effect on the workforce generally or some portion of the workforce and not solely its effect on the speaker himself; and 5) did the meeting present the first opportunity for employees to address the decision so that the speaker had no opportunity to discuss it with other employees beforehand.
What is also important is that, in a footnote, the Board stated that while they did not reach the issue in this case, they believed that other prior cases in this area arguably conflict with Meyers, including those in which the Board had deemed statements about certain subjects being “inherently concerted.” Hence, it would appear that this line of cases is also ripe to be on the chopping block for further review and restriction in the days going forward.
Non-union employers are often blindsided by the concept of and prohibitions relating to concerted protected activity. Given the Board’s historical expansion of the concept over time, it is often difficult to recognize in the moment that an employee is engaged in concerted activity. But the Alstate Maintenance, LLC decision should assist employers by making them aware of this often-forgotten protection under federal Law and provide additional guidance to employers when such circumstances arise in the workplace.
Those involved in the world of healthcare cannot escape the ongoing debate regarding staffing levels at healthcare facilities. Main Coast Memorial Hospital recently became an unwitting focal point for this discussion. A number of internal communications between the nurses’ union and the Hospital over staffing resulted in a series of editorials in the local newspaper. This in turn motivated a non-union employee to write a letter to the editor supporting the position of the union in criticizing the management of the Hospital. In doing so, however, the employee violated the Hospital’s media policy, which restricted how and when an employee may contact media services, and she was discharged. She then filed an unfair labor practice charge over her discharge. In a ruling on November 2, after an evidentiary hearing, an ALJ found the employee’s actions to be protected and concerted, and therefore found the discharge unlawful. The matter is currently on appeal before the NLRB.
The case turned on the Board’s new standard for workplace rules as expressed in the Boeing decision, as well as the fundamental concept of what constitutes protected concerted activity. In applying Boeing, the ALJ found that the rule was neutral on its face, but that it had been applied in a discriminatory fashion. The ALJ appeared to rely, in large part, upon the fact that the Hospital had never enforced this policy in the past. Notably, however, there was also no evidence of a prior breach of this rule. The concerted nature of the employee’s actions also appears questionable, as the letter to the editor was clearly stated in terms of the author’s individualized beliefs, and there was no indication that she was acting on behalf of any other employee. She had simply stated she agreed with the presentation of concerns by other employees – in particular, the union’s position on matters of staffing.
The bottom line is that employers should always be aware of the implications of the National Labor Relations Act regarding workplace complaints, whether they are internal or external, such as this case, to an outside media source. Disciplining employees for expressing their opinions can often be found to be protected concerted activity under the NLRA and therefore result in a public relations nightmare due to the adverse press associated with the filing of a charge with the NLRB. Employers should review their rules regarding media contact to ensure (1) that they comply with the NLRA and do not prohibit protected concerted activity, and (2) ensure consistent enforcement of the rule.
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
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.
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.