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.
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.