A divided NLRB ruled that employees have a presumptive statutory right to use their employers’ email systems for non-business purposes, including communicating with one another about union organizing. The decision overturns the Board’s prior precedent in Register Guard, which held that employees do not have a statutory right to use their employers’ email systems to engage in “Section 7 activities” like union organizing. The three-member Board majority concluded that Register Guard was “clearly incorrect,” reasoning further that email usage in the workplace has dramatically changed in the years since it was decided. The Board majority called its decision “carefully limited” to workers who had been previously given access to emails and where businesses cannot justify a complete ban of personal use on emails by pointing to special circumstances making such a ban necessary. One dissenter argued that the new standard violates the First Amendment by requiring employers to pay for speech that they do not support. Purple Communications, Inc. For more information see our recent client briefing, NLRB Rules Employees have Statutory Right to Use Business Email Systems for Non-Work Purposes, Including Union Organizing.

Affirming an Administrative Law Judge’s (ALJ’s) decision, the NLRB ruled that Mercedes-Benz violated the National Labor Relations Act (NLRA) by prohibiting the distribution of labor materials in company “team centers.” Mercedes-Benz argued that they should be able to prohibit distribution of union materials in team centers because they were adjacent to work areas and special circumstances warranted the prohibition. The NLRB disagreed and ordered Mercedes-Benz to stop prohibiting employees who are off the clock from distributing to other nonworking employees. Mercedes-Benz U.S. Int’l, Inc.

The U.S. District Court for the Southern District of New York denied the NLRB’s request for an injunction forcing a transportation company to recognize and bargain with the Teamsters after finding the union did not represent a majority of the bargaining unit employees. Allways East Transportation in New York (Allways) won a contract to provide transportation services in Dutchess County, N.Y., taking over operations once performed by Durham School Services. Allways hired several former Duham drivers and monitors, who were represented by Teamsters Local 445. The union demanded recognition as the employees’ bargaining representative and filed unfair labor practice charges when the company refused to recognize the Teamsters. The acting NLRB regional director filed a petition for a preliminary injunction requiring the company to recognize and bargain with the Teamsters. The district held that Allways could only be a successor if the Teamsters represented a majority of employees in the bargaining unit, and because the bargaining unit consisted on two terminals, there was no evidence of majority representation. The court further noted that while a single-facility unit is presumptively appropriate, that presumption is rebutted where, as in this case, there are interchanging employees who performed the same jobs and possessed the same skills, trainings, and certifications and centralized supervision. Murphy v. Allways East Transp., Inc.

An NLRB ALJ found that Cablevision Systems Corp. (CSC) violated federal labor law when it discharged 22 employees that were participating in a union protest. The Communications Workers of America (CWA) represents a unit of 300 CSC employees in Brooklyn, N.Y., but the union and company have not been able to reach a collective bargaining agreement. The CWA filed charges after 22 employees protested the stalled negotiations and were subsequently told that they had been replaced. The ALJ found that, although factual disputes existed as to whether the employees were actually on strike, CSC had told the workers that they had been “permanently replaced” in violation of Section 8(a)(1) and (3) of the NLRA. The ALJ also sustained allegations that CSC interfered with employee labor law rights by attempting to discourage support for the union when it promised improved wages and benefits, and solicited employee grievance procedures. The ALJ, however, threw out other charges alleging that CSC engaged in surface bargaining. CSC Holdings, LLC.

An NLRB ALJ ruled that SBM Management, a cleaning company located in Virginia, violated the NLRA by giving employees bonus checks six days before a representation election. The ALJ recognized that the bonuses may have been given in response to the employees’ stellar performance, but the company did not produce evidence to overcome the presumption that a pre-election gift of benefits is coercive. After SBM gave bonuses, Chemical Workers Union Council lost the election 20-8. The NLRB has since called for a second election. SBM Mgmt. Servs.

In a split decision, the NLRB determined that Care One at Madison Avenue LLC violated the NLRA by posting a copy of its workplace violence policy and encouraging employees to treat each other with “dignity and respect.” After winning a close election, Care One management posted the policy along with a memo warning that threats, intimidation, and harassment are dischargeable offenses. The majority declared that while the policy itself may not be problematic, in context the memo and policy could be construed to prohibit Section 7 activity. The dissenting board member found that the employees have no statutory right to engage in threatening or violent behavior and thus there was no violation. Care One at Madison Ave.

An NLRB ALJ found that Wal-Mart maintained an overbroad dress code policy that interfered with employees’ right to wear union insignia. The dress code prohibited employees from wearing logos other than Wal-Mart logos and “logos allowed under federal or state law.” The policy was later updated to allow for logos that were smaller than the Wal-Mart nametag. The ALJ found that the initial policy was not saved by requiring employees to determine their own rights. The ALJ found the updated policy was similarly overbroad and the NLRB had previously allowed union paraphernalia much larger than the Wal-Mart nametag. The ALJ found no basis for a claim that a Wal-Mart manager had engaged in surveillance, but also ruled that a different manager violated the NLRA by asking an employee if she was worried that organizing activity would cause the store to close and that the company selectively enforced the dress code policy to target union activity. Wal-Mart Stores, Inc.

The NLRB dismissed an unfair labor practice charge against Babcock & Wilcox Construction Co., but took the occasion to change the established standing standard applied in deciding whether to defer unfair labor practice charges to arbitration. In a 3-2 decision, the majority ruled that the 30-year-old deferral standard set in Olin Corp. was inadequate. Under the new deferral standard a party seeking deferral must show: “(1) the arbitrator was explicitly authorized to decide the unfair labor practice issue; (2) the arbitrator was presented with and considered the statutory issue, or was prevented from doing so by the party opposing deferral; and (3) Board law reasonably permits the award.” Dissenting Board members argued that the majority was disrupting a standard that has worked effectively for three decades. Babcock & Wilcox Constr. Co.

The NLRB General Counsel issued 13 unfair labor practice complaints against McDonald’s alleging the company and its franchisees are jointly liable for labor violations. The complaints allege that McDonald’s and various franchise owners have engaged in threats, surveillance, discriminatory discipline, and other violations of the NLRA, in response to employees engaging in lawful organizing activity. The General Counsel’s theory of liability asserted against McDonald’s contradicts long standing precedent holding that franchisors and franchisees are not joint employers. Consolidated hearings to cover certain regions have been scheduled in Manhattan (Regions 2 and 4), Chicago (Regions 13 and 25), and Los Angeles (Regions 20 and 31). Hearings for the other complaints will be scheduled after the initial hearings have been finalized.

The NLRB ruled that Pacific Lutheran University (PLU) is not exempt from NLRB oversight in a decision that altered the Board’s test for religious college faculty jurisdiction. The new test requires that a university show that it offers a religious educational environment and that it holds its teachers out as performing specific religious functions. According to the majority, PLU did not publicly represent that their faculty performed religious functions, making them identical to the faculty at non-religious institutions. The dissent suggested that the new test may run afoul of the First Amendment. Pacific Lutheran Univ.

The NLRB held, 2-1, that a casino operator’s rule banning gossiping was lawful, but found that the casino’s insubordination rule prohibiting disrespectful conduct violated the NLRA. UNITE HERE Local 2850, representing approximately 160 employees at the casino, filed the unfair labor charges challenging several of Lytton Rancheria of California’s work rules. The Board majority found that an “unacceptable behavior” rule that prohibited “gossiping about other team members” was lawful. The majority deemed that gossip has an understood meaning and the rule would not reasonably prohibit or limit employees exercise of protected Section 7 rights. The dissent argued that the term gossip is broad and ambiguous, and therefore included a reasonable belief that it would include protected activity. A different Board majority found that the company’s rule prohibiting “insubordination or other disrespectful conduct” could reasonably be found to cover protected activity. The dissent, however, pointed to the several instances where the Board has found a ban on insubordination to be lawful and declared that disrespectful conduct is just a subset of that ban. Lytton Rancheria of Calif.

The NLRB dismissed unfair labor practice related to alleged bad faith bargaining charges against FairPoint Communications Inc. The workers represented by CWA and IBEW have been on strike since October 2014, protesting stalled negotiations. The unions hope to appeal the NLRB’s recent dismissal. FairPoint Communications Inc.