With the new make-up of the NLRB resulting in three Republicans sitting on the Board there is no doubt in my mind that the Specialty Healthcare standard in determining appropriate bargaining units will be one of the first of the “new standards” to disappear.
In most situations the NLRB’s long established Weingarten doctrine can be applied in a fairly straight-forward fashion. But I still get questions regarding the interplay of drug and alcohol testing when it comes to Weingarten. This is probably due to the fact that the Ralphs Grocery Company decision, which issued in 2014, is a relatively new expansion of the Weingarten doctrine wherein an employee has the right to consult a union steward prior to taking a drug test. And then more recently, in Manhattan Beer Distributors the Board expanded Weingarten rights further, in the context of drug and alcohol testing, as the Board established that an employee had a right to a union steward to be physically present for the alcohol or drug test. An employer need only wait a “reasonable amount of time” for the union representative to be physically present; however, that time will be a function of the substance being tested for and the effect of time on the outcome of the test results. In other words, alcohol will probably have a shorter timeline in terms of what is a reasonable period, versus marijuana, which stays in the system for days, if not weeks.
Again, the employee must request the union representation. There is no duty on the part of the employer, absent a contractual requirement otherwise, to seek out union representation for these circumstances. So be aware of these new restrictions and apply them wisely, otherwise your discipline will more than likely be found unlawful and an otherwise clean discharge will turn into the nightmare of reinstatement and full backpay.
In an August 27, 2015 decision, a majority of the Board found that the Purple Communications standard, with respect to an employer’s email system, would apply without exception to healthcare providers and, in particular, for acute care hospitals. Contrary to the cogent arguments put forth by member Johnson in his dissent, the majority found that there should be no exception to the presumption set forth under Purple Communications that employees have a statutory right to use an employer’s email system for Section 7 related communications during non-working time. The majority also found that the hospital failed to show “special circumstances” to rebut this presumption, notwithstanding the fact that evidence was submitted of studies finding a correlation between employee distractions and patients’ safety and identifying computers and other electronic communication devices as sources of such distraction. Again, member Johnson, in his dissent, sets forth the obvious impact of electronic distractions in a hospital setting, but to no avail. He also emphasizes the fact that the use of email is actually extremely difficult, if not impossible, to monitor in terms of limiting its use to non-working time for a number of logical reasons, especially with respect to when employees receive emails. Indeed, Johnson points out that an email system is a virtual work area. This fact, along with the fact that there were numerous other alternative modes of communication available for employee communication, which do not depend on access to the employer’s email system, such as the employees’ personal cell phones, other electronic devices, numerous break rooms, and other locations for face to face conversations, make the Purple Communications standard inapplicable in the cited employment context.
Needless to say, this decision will have an immense impact on how healthcare providers will be able to stem abuse of their email systems, as well as increase the risk of litigation over distracted healthcare providers.
Finally, as always, policies need to be reviewed and modified in light of this decision so that the enforcement of such policies do not run afoul of the NLRA and result in additional risk management considerations.
The NLRB continues to overrule long-standing case law in key areas. Last week, in particular, two major determinations of the NLRB issued which will no doubt be tested before the courts of appeal. One, involving the Joint Employer Doctrine for which this Firm issued a client alert, can be reviewed here; the second, involved Dues Check-Off, which will be the primary topic of this blog posting. As some of you may recall, the Board had previously overturned the long-standing case law as to dues check-off expiration, established long ago by Bethlehem Steel, but as a result of the ruling in Noel Canning that decision was vacated. Hence this is the second rendition of the Board’s efforts to overturn Bethlehem Steel.
In a nutshell, for over 50 years the Board has established that, during the collective bargaining process, once the contract expires a number of different provisions expire along with the contract, unlike most terms and conditions of employment which must continue post-expiration until the parties reach impasse or agreement. There are a number of policy and practical reasons why these exceptions take place and dues check-off is no different. What is particularly difficult to understand is why the Board is overturning long-established precedent in this area. There was no cry of inherent unfairness by any particular group regarding this principle of law. Indeed, both sides, both labor and management, were quite comfortable with the status quo. When it comes to collective bargaining there is no question that having pre-established “rules of the game” is vitally important for both parties. Modifying a key provision of these rules, 50 years after the rule was established, for no apparent rational reason, is just difficult to understand. It will now take time, effort, and expense, by all parties, to deal with this change to the collective bargaining process. Moreover, no doubt litigation in this area will increase and it may very well result in more work stoppages. So why is an agency whose primary purpose is to eliminate labor disputes creating more labor unrest by its actions, because that is surely the outcome of this change in case law. Indeed the impact is even more evident with all the changes taking place for many months with the current Board, be it the joint employer status, the new representation rules, the new handbook guidelines, or the myriad of other changes that have taken place. Legitimate changes in the law that are nuances to pre-established law I understand, but the wholesale destruction of policies and procedures long established simply makes no sense and, again, will simply create more labor strife, not labor peace. This is partially true where the Board has replaced long established bright line tests with nebulous standards, such as the case of the new joint employer standard. So, I ask, why the changes?
On June 26, 2015 the Board issued a decision in American Baptist Homes of the West d/b/a Piedmont Gardens in which it overruled precedent that has been in place since 1978 which had exempt witness statements from disclosure under the request for information guidelines per Section 8(a)5 of the Act. Notwithstanding strong public policy to the contrary, the majority found no reason to continue to apply the Anheuser-Busch doctrine when it comes to workplace investigations. The dissents of members Johnson and Miscimarra provide a very cogent argument in support of the public policy which maintained the Anheuser-Busch doctrine for these many years. What is most striking however, is the hypocrisy of the NLRB in finding that the Anheuser Busch doctrine should be overruled because it is not an effective mechanism when the Board still continues to apply the Anheuser-Busch rule when it comes to ULP proceedings in that the Board does not disclose witness affidavits in NLRB proceedings for the exact same reasons that were expressed by the Board when it originally issued Anheuser-Busch, that being fear of intimidation and harassment, as well as witness tampering. How the Board can say that they will adopt a restrictive standard for their own internal proceedings, but not for proceedings outside the context of ULP hearings, is beyond comprehension.
As summarized by member Johnson in his dissent “in sum, for over 30 years the rule of Anheuser-Busch has protected the arbitration process, protected employee witness who participated in work place investigations from coercion and intimidation and enabled employers to conduct effective investigations into workplace misconduct. Because confidentiality is universally central to all employer internal investigations of employee misconduct, the Detroit Edison case by case balancing of confidentiality interests is inappropriate and unnecessary.” That protection now ceases to exist.
I understand the need to “push the envelope” when you sit in the position of being a prosecutor, as does the General Counsel for the NLRB, but the Board itself does not sit in that role. Nor should it ignore the legal directions of the Supreme Court, and other courts of this land, which have clearly indicated that its position in D.R. Horton simply oversteps the bounds of legal authority. And in continuing to ignore these decisions, the Board simply loses credibility in the legal community.
The Board, once again, continues in its trend of losing such credibility with its recent decision in the case of Murphy Oil USA. Members Harry Johnson and Philip Miscimarra do a thorough job, in their respective dissents in that case, laying out the reasons why D.R. Horton is not supported by the case law. Each dissent is not an academic paper in which their determinations and arguments rely solely on extrapolating from current legal theories, but rather, they simply restate the law that is currently in place. There are no surprises here. This has all been said before by many others.
So now a procedure that worked so well in the real world for both employees and employers in resolving workplace disputes is hampered in its continued implementation by the Board’s needless adherence to a position that is legally unsupportable. At this point, if there is ever a case for sanctions for filing a frivolous appeal, this is one, if the Board continues in its efforts to push the D.R. Horton analysis further up to the Courts of Appeal. It is time to put this matter to rest, and perhaps this is the only effective means of insuring that it is done sooner versus later.
Before the advent of the digital age, when there was an organizing campaign afoot, most employers would be told by their legal counsel to put their rolodex under lock and key, and to review their standard no solicitation/no distribution policies in an effort to slow down organizing attempts in their workplace. Obviously much of this has changed in light of the use of emails and the internet by union organizers, employees, and unions in their attempts to organize employees. Companies often make it easy to exchange information internally by publishing an email listing for every employee on the payroll, which any employee can easily hand over to a union organizer, or worse, in some cases it is simply published on the company’s web page. Accordingly, unions can easily send personalized messages out to each and every employee with minimal effort. Moreover, employees can now develop their own group Facebook pages, and otherwise interact via group messages regarding organizing efforts, all behind the scenes and without the knowledge of the employer.
For reasons that still baffle me, the NLRB ruled in 2007, in the Register Guard case, that employees had no statutory right to use an employer’s email system for Section 7 purposes to organize the workplace. This position was totally contrary to the myriad of other decisions that were coming out of the NLRB in its effort to micromanage the workplace. So why the NLRB backed off when it came to the email system of an employer is difficult to understand, but I guess one should not look a gift horse in the mouth. In any event, this ruling has been under attack by unions since its inception, and, most recently, was subject to litigation in the case of Purple Communications Inc., 361 NLRB No. 43 (Sept. 24, 2014). However, the NLRB took a pass on addressing the issue. So the rule remains that a policy prohibiting employees from using the email system for non-job related solicitations is entirely appropriate. Perhaps the Board is awaiting a case where a claim of discriminatory enforcement is made, as those cases are easier to support, in terms of violation of the law, at least in front of the Courts of Appeal. But even the courts understand that the Board has a rather skewed viewpoint when it comes to what is discrimination under various HR policies. Some of these courts have found that the Board was trying to compare apples to oranges, versus apples to apples, in their analysis of what is discrimination regarding such policies and so have denied enforcement of such cases.
The Board finally adopted the more appropriate standard in the Register Guard case in which it found that nothing in the Act prohibits an employer from drawing lines on a non-Section 7 basis. That is, an employer may draw the line between charitable solicitations and non-charitable solicitations; between solicitations of a personal nature and solicitations for a commercial sale of a product; between invitations for an organization and invitations of a personal nature; between solicitations and mere talk; and between business related use and non-business related use. In each of these examples, the fact the union solicitation would fall on the prohibited side of the equation does not establish that the rule discriminates along Section 7 lines, which makes perfect sense.
However, notwithstanding these previous rulings by the courts, and now the NLRB, unions are still attempting to have the Board overturn Register Guard. Unions were hopeful that Purple Communications Inc. would be the game changer, but it was not. In any event, we will keep a close watch on such matters as no doubt it will be subject to challenge in the future.
On March 12, 2014 a three-person panel of the NLRB issued a rather scathing decision with respect to the named employer’s attempted enforcement of their e-mail policy. The employer involved, the California Institute of Technology Jet Propulsion Laboratory, employed approximately 5000 individuals at the site in question. As a result of new federal regulations, per homeland security concerns, federal government employees and employees for contractors with the federal government, were subject to additional security procedures to enter any federal facilities, including the employer’s site in issue. From all indications, the background checks in issue at this particular site were extremely broad, resulting in a number of employees making protests and initiating a lawsuit over the matter. The litigation was high profile and resulted in a decision by the Supreme Court in 2011. The outcome of the Supreme Court decision resulted in a number of employees issuing e-mail messages to those in their employment group, utilizing the work e-mail system. The recipients of these e-mails ranged from approximately 100 to over 700 employees. The focus of the e-mails was the security process and the employees’ ongoing desire to develop a less onerous process. There were a number of e-mail responses supporting the actions by the individual employees who sent the e-mails.
Each of the employees who issued the e-mails was brought in and cited for discipline, with a variety of different rules being invoked. However, it was clear from the testimony at trial that employees historically had carte blanche rights to use the e-mail system for a number of different non-work related activities, without any sort of disciplinary recourse by the employer being taken, either as to content or the scope of the distribution. Needless to say it did not take the Administrative Law Judge much in the way of analysis to find a violation of the Act, concluding that the content of the message was protected, and obviously, based upon the facts, clearly concerted. Moreover, it was abundantly clear that the employer was applying whatever e-mail policy that might exist in a very discriminatory fashion.
The obvious take-away from this case is that while Register Guard allows an employer to control the use of its e-mail system, discriminatory application by an employer will still bring down the heavy hand of the NLRB. In other words, if you have an e-mail policy in place it needs to be enforced in an even-handed and uniform fashion, and any attempts to use it in a selective fashion, is going to run afoul of the National Labor Relations Act. Accordingly, this case suggests that training, like in any HR situation, is critical for the maintenance of a proper workplace, which includes training on established policies so that allegations of arbitrary or discriminatory treatment are lessened.
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.
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.