National Labor Relations Act

Earlier this month the United States Supreme Court decided to hear three cases which will resolve the split between various Courts of Appeals (discussed in our prior post here) as to whether individual arbitration agreements barring class arbitration actions in employment-related matters are enforceable. While the Court held in 2011 that the Federal Arbitration Act would allow companies to avoid consumer class actions by insisting upon individual arbitrations in their contracts, AT&T Mobility v. Concepcion, workers have contended that employment contracts are different. They have successfully argued that the National Labor Relations Act prohibits class waivers since it would impinge upon worker’s rights to engage in “concerted activities”. The Seventh Circuit Court of Appeals accepted such an argument in Epic Systems Corp. v. Lewis (discussed in our prior post here), and the Ninth Circuit accepted such an argument in Ernst and Young v. Morris. The Fifth Circuit Court of Appeals rejected the same argument in National Labor Relations Board v. Murphy Oil U.S.A. Continue Reading Mandatory Employee Arbitration Split To Be Heard By Supreme Court

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.

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.

On September 28, 2012, the National Labor Relations Board (“NLRB”) issued its decision in Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012).  The NLRB affirmed an Administrative Law Judge’s findings that a car dealership did not violate the National Labor Relations Act (“Act”) after it terminated a salesperson for his posts on Facebook.   In making its decision, however, the NLRB left undecided the arguably larger question of distinguishing social media posts that the Act protects from those it does not.  Unfortunately, that question is now left for employers who must carefully evaluate an employee’s social media activity before taking disciplinary action.

Last September, an Administrative Law Judge upheld the termination of car salesman Robert Becker after he posted pictures and captions on his Facebook page mocking a car accident that occurred at his employer’s Land Rover dealership.   What made the decision interesting, however, is the fact that Becker alleged his termination was the result of another set of Facebook posts that had nothing to do with the Land Rover accident.

In one set of Facebook posts, Becker ridiculed his employer’s launch event for a new BMW automobile.  Specifically, Becker posted pictures and comments mocking the dealership’s decision to have a hot dog cart and serve cookies and chips instead of something more formal.  In the second set of Facebook posts, Becker posted pictures and made flippant remarks about a car accident that had occurred at his employer’s Land Rover dealership across the street.  Apparently, a salesperson at the dealership allowed the child of customer to get behind the wheel of a Land Rover.  The child subsequently engaged the vehicle and crashed it into a pond.     Becker posted the comments and pictures of both events at the same time.  Two days later, management called him into a meeting about the Facebook posts and subsequently terminated his employment.

Becker argued that he was terminated for the posts about the launch event, and further argued that those posts were protected under the NLRA as they related to the terms and conditions of his employment. Becker testified before the judge that he believed the food served at the launch event could have negatively affected his commissions.  In contrast, the dealership asserted that it terminated Becker primarily for the Land Rover posts, and making light of a serious situation.

The judge agreed with Becker that his posts about the food served at the launch event were protected activities under the Act.  Specifically, the judge found the food offerings at the event could have had an adverse effect on his compensation or the ratings given to him by the dealership’s clientele.  The judge admitted this was unlikely, but nevertheless, found that the food decisions could affect Becker’s employment relationship.  As a result, the judge found Becker’s posts about the food were protected, and as such, Becker could not be terminated for those posts.

The judge also found, however, that the Act did not protect the posts about the Land Rover accident, as they did not relate to the terms or conditions of Becker’s employment.   Moreover, the judge found the testimony of the dealership’s management to be more credible, and because the dealership asserted that it terminated Becker solely for the Land Rover posts, the decision to terminate Becker for that reason did not violate the Act.  Therefore, the judge upheld the termination.

In affirming the judge’s decision, the NLRB found it unnecessary to address whether the posts about the food at the sales event were protected.  In doing so, the Board left unanswered the question regarding the types of activities relate to the terms and conditions of employment, and as a result, are protected by the Act.

What this means to you

Becker’s posts mocked the dealership’s decision about the food served at an event.  Unlike an employee who complains about their pay or working conditions, Becker’s activity was not expressly related to the terms or conditions of his employment.  Accordingly, it will be vital for employers going forward to carefully consider whether an employee’s social media activities might relate to the terms and conditions of his or her employment and how the basis for the disciplinary decision is articulated when the conduct at issue includes activity that is and is not protected by the Act.

In a 2-1 decision in Sodexo America LLC, the National Labor Relations Board (NLRB) held recently that the University of Southern California hospital violated Section 8(a)(1) of the National Labor Relations Act by maintaining and enforcing a rule that limited off-duty employee access to the workplace, except for specific purposes.

The policy at issue provided that:

  • Off-duty employees are not allowed to enter or re-enter the interior of the hospital or any other work area outside the hospital except to visit a patient, receive medical treatment or to conduct hospital-related business.
  • An off-duty employee is defined as an employee who has completed his/her assigned shift.
  • Hospital-related business is defined as the pursuit of the employee’s normal duties or duties as specifically directed by management.
  • Any employee who violates this policy will be subject to disciplinary action.

The NLRB applied the three-part test from its 1976 ruling in the seminal case on off-duty employee access, Tri-County Medical Center, to the “hospital-related business” exception of the policy and found that USC hospital’s provision violated the National Labor Relations Act (NLRA). The three part test upholds policies that:

  • Limit access solely with respect to the interior of the facility and other working areas.
  • Are clearly disseminated to all employees.
  • Apply to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activities. (emphasis added)

In Sodexo, the NLRB held that the “hospital-related business” exception to the no access policy provides management with unfettered discretion to permit off-duty employees to enter the facility “as specifically directed by management.” Applying both Tri-County and a more recent case involving St. John’s Health Center (357 NLRB No. 170) to the hospital policy’s “hospital-related business” exception, the NLRB held it violated Section 8(a)(1) of the NLRA because it does not uniformly prohibit access to off-duty employees seeking entry to the property for any purpose. In other words, the NLRB held that the policy bans off-duty employees from the premises except for when management gives them the okay. Management reserving this level of discretion for itself was held to run afoul of the NLRA.

Interestingly, the majority decision also rejected the argument that the no-access policy’s exceptions for visiting patients or seeking medical treatment ran afoul of the NLRA. In doing so, the NLRB noted that the purpose for which the individuals seek access to the facility under those exceptions is as a member of the public, not as an employee, and access is granted or denied on the same basis and under the same procedures as for members of the public. This reasoning is consistent with prior NLRB precedent.

What This Means to You

When unions seek to represent your employees, they scrutinize your policies and procedures for possible deficiencies, especially under the NLRA. Given the NLRB’s current focus on rewriting the rules on workplace policies, now is a good time to review and revise your policies, as necessary. We provide such service to many of our client on a regular basis and know the common missteps than need to be avoided.

On June 18, 2012, the NLRB launched a new page on its website that describes the rights of employees who act together, even if they are not in a union. The new page, at, defines the term “protected, concerted activity” as the term is used in the Act. On the webpage, the NLRB explains:

“The [National Labor Relations Act] gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren’t in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. These rights were written into the original 1935 National Labor Relations Act and have been upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.”

The webpage then provides summaries of more than a dozen cases involving protected, concerted activity, which can be viewed by clicking on pins on a map of the United States. For instance, the pin atop St. Louis, Mo., represents a complaint filed by a customer service representative who was fired by her employer for discussing her wages with another employee. In this case, the employer discharged the employee for violating a company policy that forbade employees from sharing such information. The NLRB found the company’s policy unlawful because discussing wages with a co-worker is protected activity under federal law.

The webpage informs users that “[w]hether or not concerted activity is protected depends on the facts of the case,” and it provides a phone number of an information officer who will advise the caller as to whether specific workplace conduct constitutes protected activity under federal law.

What this means to you

Through its new webpage, the NLRB is obviously seeking to make it easier for workers to find out whether they have been unlawfully disciplined by their employers for engaging in protected, concerted activity, and, if so, file a complaint against their employer with the NLRB. Employers should peruse the webpage and be aware of the information that the labor agency is providing to employees. Employers concerned about their policies should work with counsel to modify such policies rather than wait to react to an employee’s complaint. In addition, employers with unionized workforces must also be aware that, in addition to filing grievances, their employees may file complaints with the NLRB. The agency’s recent statements regarding unlawful employer policies – combined with its new webpage – demonstrate that the NLRB is clearly seeking to take a more active role in everyday workplace issues. Employers are encouraged to be aware of the NLRB’s recent initiatives and be proactive in response.