Labor and Employee Relations United States
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Labor Year in Review: NLRB Targets Non-Unionized Employers and Expands Worker Rights The National Labor Relations Board (NLRB) pursued its pro-labor agenda in 2014, issuing decisions generally viewed as highly favorable to organized labor on a wide variety of topics, including confidentiality policies, workplace investigations, workplace civility, social media, joint employer standards, and appropriate bargaining units. The NLRB ended the year with a flourish. In December, it held that employees with access to workplace email can use their employers' email systems to communicate about Section 7 matters and issued its "quickie election" rule, which shortens the period for representation elections by dramatically altering employer rights in election proceedings. These decisions pose significant challenges for employers when it comes to protecting the confidentiality of business information, promoting a courteous and respectful work environment, limiting access to employer property and business systems, and ensuring fair elections. See our key takeaways, summaries of NLRB decisions, and planning tips below. Employer Takeaways Based on recent NLRB decisions, employers should consider the following actions to minimize labor risk going forward: Ensure confidentiality policies avoid broad, general prohibitions and undefined terms that could be read to prohibit the discussion of wages, hours and other working conditions. Review current policies related to workplace investigations to determine whether the language tracks that of the approved language in the NLRB Office of the General Counsel Advice Memorandum and consult with counsel before disciplining or terminating an employee for violating the confidentiality of an internal investigation. Carefully review proposed disciplinary action in circumstances where the employee may be engaged in protected activity, particularly when social media use is involved. Statements and activities related to wages, hours, benefits, or other terms of employment may be protected even if they are disruptive or obscene.
For further information, please contact: Chicago Andrew Boling +1 312 861 8076 firstname.lastname@example.org Doug Darch +1 312 861 8933 email@example.com Bob Mignin +1 312 861 2520 firstname.lastname@example.org Ryan Vann +1 312 861 2588 email@example.com Houston Jordan Faykus +1 713 427 5050 firstname.lastname@example.org Rick Hammett +1 713 427 5016 email@example.com Scott Nelson +1 713 427 5027 firstname.lastname@example.org New York Rob Lewis +1 212 891 3532 email@example.com Palo Alto Jenni Field +1 650 856 5501 firstname.lastname@example.org Cynthia Jackson +1 650 856 5572 email@example.com Consider adding savings clauses to employee policies and work rules to make clear that the policy or rule is not intended to interfere with Section 7 rights. Review IT policies with business-only use restrictions. If employees use email at work, prohibiting employee use of email to communicate regarding terms and conditions of employment during nonworking time will constitute an unfair labor practice. Review your company's readiness to respond to an election petition under the NLRB's new election procedures. Together with Specialty Healthcare, these rules have the potential to significantly alter the organizing landscape. Employers should consider whether to conduct additional training or planning related to union organizing activity and develop an effective communications plan to respond to union organizing in advance. Consider organizing unit standards when establishing departmental structure, reporting relationships, job duties and training to minimize the risk of micro-units. Employers can expect new compliance challenges in 2015 as the NLRB continues to target non-unionized employer policies and broadly interpret Section 7 of the NLRA, which gives employees the right to, among other things, organize and engage in concerted activity to improve their pay and working conditions and for mutual aid or protection. Employers will need to decide whether to change their policies and practices in view of NLRB rulings or risk unfair labor practice charges. Significant NLRB Decisions in 2014 I. Employee Handbook Policies The NLRB pursued non-unionized employers for violating employees' Section 7 rights based on common employee handbook policies, including those addressing confidentiality, internal investigations, courteous workplace behavior, social media restrictions, electronic communications, and workplace access rules. Employers who have not updated their employee handbooks in recent years should do so now. The precise wording of employer policies and work rules can make all the difference when it comes to assessing their validity under the NLRA. A. NLRB Decisions Challenge Employer Policies Protecting the Confidentiality of Information Informal Rule Prohibiting Discussion of Discipline Decisions Unlawful In Philips Electronics North America Corporation, 361 NLRB No. 16 (2014), a Board majority held that an employer violated Section 8(a)(1) by maintaining an informal rule preventing workers from discussing discipline decisions. In Philips, an employee on final warning for threatening and berating coworkers told other employees that he was being disciplined because of a co-worker's complaints against him. The
co-worker informed HR that the employee was publicly accusing her of getting him in trouble. The employee was terminated, at least in part, for violating an unwritten rule making employee discipline confidential. According to the NLRB, “[i]t is important that employees be permitted to communicate the circumstances of their discipline . . . so that their colleagues are aware of the nature of discipline being imposed, how they might avoid such discipline, and matters which could be raised in their own defense.” The NLRB reached its decision notwithstanding the employee's testimony that he was not aware of any policy or rule prohibiting an employee from showing or discussing discipline with other employees and that when he received his final written warning none of the supervisors or managers told him that the warning was confidential. Planning Tip: For now, employers should review their current policies related to investigations to determine whether the language tracks that of the approved language in the NLRB's Advice Memorandum (issued in 2013 and available here) that clarifies its position on confidentiality in workplace investigations. In addition, to minimize legal risk, employers should consult with counsel before disciplining or terminating an employee for violating the confidentiality of an internal investigation. Policies Protecting Trade Secret and Business Information The NLRB continued to target employer confidential information policies designed to protect trade secret and proprietary business information and to safeguard privacy rights. For example, in Lily Transportation Corp., Case No. 01-CA-108618 (ALJ April 22, 2014), the ALJ found that a trucking company's policy that prohibited “[d]isclosure of confidential information, including Company, customer information and employee information maintained in confidential personnel files” was unlawful because employees could reasonably interpret the language as prohibiting them from discussing wages and conditions of employment. Similarly, in Fresh & Easy Neighborhood Market, 361 NLRB No. 8 (2014), the NLRB held that a grocery store chain violated Section 8(a)(1) of the Act by maintaining a confidentiality rule that stated: "Keep customer and employee information secure. Information must be used fairly, lawfully and only for the purpose for which it was obtained." The majority found that employees would reasonably interpret the rule to state that all employee information was confidential and disclosure was allowed only for the purpose for which it was obtained. In doing so, the Board rejected the ALJ's conclusion that employees would not interpret the rule in that manner because the rule was part of a code of business conduct addressing ethical matters and prohibited only the release of “collected” and “confidential” information such as social security numbers, medical information, and other information usually maintained in personnel files and not relevant to Section 7 rights. In Flex Frac Logistics, LLC v. NLRB (March 24, 2014), the 5th Circuit upheld the NLRB’s finding that a company’s confidentiality policy violated Section 7 of the NLRA. There, the employer, a non-union
trucking company, terminated an employee based on the following confidentiality clause: Employees deal with and have access to information that must stay within the Organization. … Confidential information includes, but is not limited to, information that is related to: our customers, suppliers, distributors; Silver Eagle Logistics LLC organization management and marketing processes, plans and ideas, processes and plans, our financial information, including costs, prices; current and future business plans, our computer and software systems and processes; personnel information and documents, and our logos, and art work. No employee is permitted to share this Confidential Information outside the organization, or to remove or make copies of any Silver Eagle Logistics LLC records, reports or documents in any form, without prior management approval. Disclosure of Confidential Information could lead to termination, as well as other possible legal action. The Court held that the prohibition against divulging or discussing “our financial information, including costs”, could include wages. The Court further noted that the clause did not indicate that “some personnel information, such as wages, is not included" and thus could reasonably be construed by employees as interfering with Section 7 rights. The NLRB offered employers some good news in Food Services of America, Inc., 360 NLRB No. 123 (2014). There, a Board majority found that an employer did not violate Section 8(a)(1) of the Act by terminating an employee who transferred hundreds of business emails from his company email account to his and another employee's personal email accounts. The Board rejected the General Counsel's argument that the discharge was unlawful because the employee was discharged for violating an unlawful confidentiality policy. According to the NLRB, while the employee's conduct arguably implicated concerns underlying the Section 7 rights of others, she was not discharged for discussing wages or other terms and conditions of employment, but based on her deliberate betrayal of her employer's confidentiality interest. Planning Tip: Employers should ensure confidentiality policies avoid broad, general prohibitions and undefined terms that could be read to prohibit the discussion of wages, hours and other working conditions. B. NLRB Decisions Make It More Difficult for Employers to Promote a Courteous Workplace Recent NLRB decisions ordering the reinstatement of insubordinate and profane employees and generally invalidating workplace incivility codes have extended protected conduct. The prevalent use of social media, texting and apps further complicates the problem, extending workplace issues off-site. In Plaza Auto Center, Inc., 360 NLRB No. 117 (2014), a case sent back to the Board from the Ninth Circuit, the NLRB Board confirmed its earlier
ruling that an employer violated the NLRA when it terminated an employee for cursing at his employer in a meeting about his pay. The employee called his manager a "f***ing crook" and an "a**hole"; told the owner of the company that he was "stupid" and that nobody liked him; and shoved his chair and said that if the company fired him, they would regret it. On remand, the NLRB agreed with the Ninth Circuit's finding that the nature-of-the-outburst factor weighed against protection, but determined that the employee's conduct was not menacing, physically aggressive, or belligerent. It further found that the other Atlantic Steel factors weighed in favor of protection. The subject matter of the meeting concerned the employee's concerted complaints related to terms and conditions of employment, including his compensation and policies governing salespeople; the outburst took place in a closed-door meeting away from other employees; and the employee's conduct was provoked by the employer's unfair labor practice of telling the employee that he could quit if he did not like the employer's policies. In Food Services of America, Inc., 360 NLRB No. 123 (2014), a Board majority held that an employer violated the Act when it discharged an employee for harassing a coworker by repeatedly telling her by instant message and in person that she was going to be fired. According to the panel, one employee’s warning to another that the latter’s job is at risk - even if inaccurate - constitutes protected conduct. Neither the repetition of the statements nor their distressing impact rendered them unprotected. In Hitachi Capital America Corp., 361 NLRB No. 19 (2014), an NLRB majority held that an employer violated the Act by maintaining an unlawful rule prohibiting employees from engaging in “inappropriate behavior while on company property.” The majority stated that it was unnecessary to determine whether the rule was facially unlawful because the employer applied it to restrict an employee's exercise of Section 7 rights when she engaged in protected concerted activity by sending disrespectful emails to company supervisors questioning a new Inclement Weather Day policy. While the warning did not expressly cite the "inappropriate behavior" rule, the warning characterized the employee's emails as “rude,” reminded the employee this was not her first warning for using “inappropriate/profane” language, and instructed her to address all employees “with respect” in the future. In Purple Communications, Inc., 361 NLRB No. 43 (2014), a Board panel found that the employer's "no-disruption" rule, which prohibited employees from “causing, creating or participating in a disruption of any kind during working hours on company property,” was unlawful. The Board agreed with the ALJ's conclusion that this language could be interpreted as barring Section 7 activity, including the right to engage in a work stoppage, because the rule did not define or limit the meaning of "disruption" or state that it was not intended to refer to such activity. In Dignity Health d/b/a St. Rose Dominican Hospitals, 360 NLRB No. 126 (2014), the NLRB ordered the reinstatement of an employee discharged for violating the employer's zero tolerance anti-retaliation policy. The employee had frequent disputes with another hospital
employee who worked as a cashier. He was placed on administrative leave after he threatened the cashier by stating that he would “take care of [her]." While on leave, the employee circulated a petition requesting signatures from other employees who had issues with the attitude and conduct of the cashier. The hospital subsequently reinstated the employee and warned him that hospital policy prohibited retaliation against the cashier and other coworkers. When the employee continued to collect signatures and pursue measures to have the cashier disciplined, he was terminated. The NLRB panel found that this activity was both concerted and for mutual aid and protection under Section 7 of the Act. In Hill and Dales General Hospital, 07-CA-053556 (2014), the NLRB held that the employer's “Values and Standards of Behavior” policy violated the NLRA. The policy required employees to “not make negative comments about [other employees],” to represent the organization “in the community in a positive and professional manner in every opportunity,” and to “not engage in or listen to negativity or gossip.” According to the Board, these requirements could stop employees “from making statements to third parties protesting their terms and conditions of employment – activity that may not be ‘positive’ towards the [employer] but is clearly protected by Section 7.” In Hoot Wing LLC & Ontario Wings LLC dba Hooters of Ontario Mills, an ALJ reinstated an employee terminated based on her threatening and obscene comments accusing a co-worker of "rigging" a bikini contest. Despite the intimidation and foul language, the ALJ ordered Hooters to reinstate the employee with backpay and invalidated policies that included obligations to be respectful. According to the ALJ, the employer's rule prohibiting insubordination toward managers and lack of respect toward fellow employees or guests was unlawful because it did not have a sufficient limiting clause, such as limiting the rule to behavior or conduct that does not support the "company's goals or objectives," and, therefore, could chill protected activity. Hooters' social networking policy and its policy requiring employees to be "respectful to the company and other employees" were also deemed to be violations. In contrast, in Copper River of Boiling Springs, LLC, 360 NLRB No. 60 (2014), a Board majority determined that a restaurant's policy prohibiting "insubordination to a manager or lack of respect and cooperation with fellow employees or guests" was lawful. The panel noted that the rule specifically prohibited "displaying a negative attitude that is disruptive to other staff or has a negative impact on guests" and was limited to unprotected conduct that would interfere with the employer's legitimate business concerns. The ALJ also found the following provisions to be lawful: Unauthorized dispersal of sensitive Company operating materials or information to any unauthorized person or party. This includes but is not limited to policies, procedures, financial information, manuals, or any other information contained in Company records. Any other action or activity which the Company believes represents an actual or potential threat to the smooth operation,
goodwill, or profitability of its business. Planning Tip: Workplace policies requiring respectful and courteous behavior should clearly state the exceptions to the rule and provide examples of protected and prohibited activity. In addition, employers should carefully navigate workplace disputes, which can implicate federal and state anti-discrimination, harassment and bullying laws in addition to the NLRA. C. Social Media Section 7 of the NLRA limits an employer's right to restrict an employee from communicating via social media on issues such as wages, hours, benefits or other terms and conditions of employment. In 2014, the NLRB continued to strike down social media policies it deemed overbroad. In Lily Transportation Corp., Case No. 01-CA-108618 (ALJ April 22, 2014), the ALJ found that the employer's social media policy unlawfully interfered with employee Section 7 rights. The policy provided: “Employees would be well advised to refrain from posting information or comments about Lily, Lily’s clients, Lily’s employees or employees’ work that have not been approved by Lily on the internet, including but not limited to blogs, message boards, and websites. Lily will use every means available under the law to hold persons accountable for disparaging, negative, false, or misleading information or comments involving Lily or Lily’s employees and associates on the internet and may take corrective action up to and including discharge of offending employees.” In Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (2014), a Board panel held that an employer violated Section 8(a)(1) of the Act by discharging two employees for participation in a Facebook discussion involving claims that they owed additional income taxes because of the employer’s withholding mistakes. The panel emphasized that employees have a statutory right to act together to improve terms and conditions of employment or otherwise improve their lot as employees, including the use of social media to communicate with each other and with the public. In reaching its decision, the NLRB rejected the employer's contention that the two employees lost the protection of the Act because the Facebook posts were made in a public forum accessible to both employees and customers and adversely affected the employer's public image. The NLRB further held that the employer's internet/blogging policy violated the Act. The policy provided: The Company supports the free exchange of information and supports camaraderie among its employees. However, when internet blogging, chat room discussions, e-mail, text messages, or other forms of communication extend to employees revealing
confidential and proprietary information about the Company, or engaging in inappropriate discussions about the Company, management, and/or co-workers, the employee may be violating the law and is subject to disciplinary action, up to and including termination of employment. Please keep in mind that if you communicate regarding any aspect of the Company, you must include a disclaimer that the views you share are yours, and not necessarily the views of the Company. In the event state or federal law precludes this policy, then it is of no force or effect. The majority found that employees would reasonably interpret this rule as prohibiting any discussion about their terms and conditions of employment deemed “inappropriate” by the employer. The rule contained only one other prohibition – against revealing confidential information – and provided no examples of what the employer considered to be inappropriate. In Durham School Services, L.P., 360 NLRB No. 85 (2014), an NLRB majority set aside the results of an election in part because of the employer's social networking policy. The policy required that contacts by employees with parents, school representatives and school officials be “appropriate” and prohibited publicly sharing “unfavorable information related to the company or any of its employees.” Planning Tip: Given the significant risks around brand, confidentiality and privacy posed by rapid and global dissemination of tweets and posts, companies should carefully develop computer usage and social media policies to address these concerns. Employers should proceed cautiously and consult with counsel before disciplining or terminating an employee based on his or her social media use. D. NLRB Decisions Expand Access to Employer Equipment and Facilities The NLRB's 2014 rulings both narrowed the circumstances under which an employer may limit use of email systems and expanded off-duty employees' access to the workplace. Employees Are Entitled to Use Email for Protected Concerted Activity In Purple Communications, 21-CA-095151 (2014), the NLRB overruled its decision in Register Guard and adopted a presumption that employees who have been given access to the employer’s email system in the course of their work are entitled to use the system to communicate about Section 7 matters while on nonworking time. The NLRB's decision raises numerous issues which is likely to spawn new unfair labor practice charge litigation for some time. For example: While the majority indicated that an employer may apply "uniform and consistently enforced controls (e.g., prohibiting
large attachments or audio/video segments) to the extent such controls are necessary to maintain production and discipline," it did not provide guidance on this issue. Similarly, the NLRB did not clarify what circumstances might justify a total ban on nonwork email use. Employers who choose to impose a working-time limitation could face challenges related to how they monitor and enforce the limitation. While employers have the right to monitor emails on their computer systems, the NLRA prohibits unlawful surveillance of Section 7 protected concerted activities. The decision could impact non-solicitation and non-distribution policies. According to the majority, individual messages sent and received via email may constitute solicitation or distribution depending on their "content and context." The NLRB did address an employer's obligation to retain Section 7 messages, noting that such messages need not be stored any longer than other messages consistent with generally applied record-retention processes. Planning Tip: Purple Communications likely will be appealed. In the meantime, employers that have adopted IT policies with business only use restrictions should review these policies. If employees use email at work, prohibiting employee use of email to communicate regarding terms and conditions of employment during nonworking time will constitute an unfair labor practice. Such a policy likely would result in the reversal of a favorable election outcome. In addition, employers (particularly those involved in the organizing process or other labor proceedings) should ensure email monitoring activities do not specifically target union or other employee protected activity. NLRB Expands Off-Duty Employee Access to Employer Facilities In American Baptist Homes of the West d/b/a Piedmont Gardens, 360 NLRB No. 100 (2014), a Board panel held that a retirement facility violated Section 8(a)(1) of the Act by posting a sign prohibiting union meetings in an employee break room, by maintaining a policy prohibiting employees from remaining on its premises after their shift unless previously authorized by a supervisor, and by enforcing that policy against two employees who sought access to the employer's premises to communicate complaints to management. The majority found that the policy was unlawful because it contained an exception, indefinite in scope, under which off-duty access was permitted with supervisory authorization. In this regard, the NLRB rejected the employer's argument that the policy was lawful because in practice it had permitted off-duty employees to enter the nursing home in only three limited circumstances—when an employee picked up a paycheck, attended a scheduled meeting with human resources, or arrived early for the night shift. The majority found that the record did not establish that those were the only circumstances under which employees had been granted access in the past.
In Durham School Services, L.P., 360 NLRB No. 85 (2014), a Board majority set aside the results of an election in part because of the employer's off-duty access policy. The policy provided: “Off-duty employees should not enter (except for legitimate business reasons) any Company facility not open to the general public and are prohibited from interfering or causing a disturbance with an on-duty employee’s performance of his/her work duties.” The majority agreed that the policy failed to satisfy the test in Tri-County Medical Center because it did not prohibit off-duty access for any purposes, but, rather, only, in the employer’s opinion, for those purposes which are not “legitimate business reasons." It also improperly prohibited off-duty employees from accessing outside nonworking areas of the property. II. Board Reaffirms D.R. Horton Ruling that Class Action Waivers in Arbitration Agreements Violate the NLRA In April 2014, the Fifth Circuit denied the NLRB's petition for an en banc rehearing of a divided panel ruling from December 2013 in D.R. Horton holding that federal labor law does not prohibit mandatory arbitration agreements barring employees from pursuing class or collective claims. Notwithstanding numerous federal appellate and district court decisions rejecting its position, the Board reaffirmed its controversial D.R. Horton decision in Murphy Oil USA, Inc., 361 NLRB No. 72 (Oct. 28, 2014). There, the majority once again held that arbitration agreements with class and collective action waivers, required as a condition of employment, violate the National Labor Relations Act (NLRA) and are unenforceable. Planning Tip: While employers continue to face some risk of litigation over the use of class waivers based on the NLRB's position, most federal appellate and district courts have declined to follow the D.R. Horton decision. III. NLRB Makes It Easier for Unions to Organize A. NLRB Adopts Quickie Election Rule In December 2014, the NLRB adopted its so-called "quickie" election rule. The final rule is substantially similar to the rule first proposed in 2011 and subsequently struck down by a federal judge in 2012. The rule already has been challenged - this month the Chamber of Commerce sued the NLRB alleging that the rule restricts employers' ability to communicate with employees in violation of the First Amendment and the NLRA. Unless enjoined by a federal court or postponed by the Board, the final rule will take effect on April 14, 2015. The new rules significantly shorten the period for representation elections by dramatically altering employer rights and obligations in election proceedings. Elections could be held as early as 14 days after a petition. Since campaigns frequently begin months in advance of an employer's knowledge, the new rules will make it difficult for an employer to assess the situation and to explain its position to employees.
Among other changes, the new rules will: Require the employer, when an election petition is filed, to post and distribute to employees a Board notice about the petition and the potential for an election to follow; Require pre-election hearings generally to be set to begin eight days after a hearing notice issues; Require an employer to file a “Statement of Position” in advance of the hearing setting forth the employer’s position on numerous legal issues. Any issues not raised in the statement generally will be deemed waived; Require the employer to provide, in advance of the hearing, a list of the names, shifts, work locations, and job classifications of the employees in the petitioned-for unit, and any other employees that it seeks to add to the unit; Limit the scope of pre-election hearings and give regional directors and hearing officers the authority to exclude evidence and prevent pre-election litigation over voter eligibility and inclusion issues; Limit post-hearing briefs to when the regional director determines that they are necessary; Make the review of any post-election decision totally discretionary with the NLRB, rather than mandatory; Require the employer within 2 work days (now 7 days) of the direction of election to provide the union with the name, home address, telephone number, and email address of all eligible voters (currently only employees' full names and residence addresses must be provided); and Permit the electronic filing of election petitions and the related showing of interest to support the petitions. You can view a comparison of current and new procedures here and the text of the Final Rule here. Planning Tip: Employers should establish employee relations programs and clear channels for employees to communicate with management. In addition, employers should assess the vulnerability of possible voting (bargaining) units to union organizing activity; train managers and supervisors to recognize early signs of organizing; and develop a response (i.e., campaign strategy and materials) to union organizing and elections in advance. A "campaign in a box" strategy can position employers to respond quickly in the event of a union petition. Finally, it is critical for employers to review policies and procedures for compliance with the NLRA. If the NLRB determines that an employer policy interferes with employee rights under the NLRA, the policy can be used to set aside an election won by the employer (even if the policy is not enforced).
B. "Micro-Unit" Bargaining Unit Standard Increases Organizing Odds In 2013 in Specialty Healthcare, the NLRB redefined the standard for determining bargaining units in non-acute health care facilities, holding that unions can organize a relatively small bargaining unit consisting of employees sharing a "sufficient community of interest," even if the group excludes other employees who do similar work. Under the decision, an employer challenging a petitioned-for unit of employees on the grounds that additional employees were wrongly excluded must show that the excluded employees "share an overwhelming community of interest" with the unit the union wants to organize. Based on this standard, unions can target small or "micro" bargaining units within companies - particularly where efforts to organize larger groups have been unsuccessful - to increase their chances of winning an election. In Macy’s Inc., 361 NLRB No. 4 (July 22, 2014), an NLRB panel approved a union’s effort to organize a unit at a Macy’s store made up only of the cosmetics and fragrance sales workers. According to the NLRB, these employees shared a community of interest not shared by other store employees because they were located in the same department, were supervised by the same managers, and had little regular contact with other store employees. In contrast, in Neiman Marcus Group, Inc. d/b/a Bergdorf Goodman, 361 NLRB No. 11 (July 28, 2014), the NLRB unanimously rejected a Regional Director’s decision ordering an election among a petitioned-for “micro” bargaining unit consisting of women’s shoe sales associates working in two areas within a store. While the Board determined that the employees were readily identifiable as a group based on their function, they did not share a community of interest. According to the NLRB, the petitioned-for unit consisting of the entire Salon shoe department and only a select portion of employees out of a second department did not conform to the departmental structure established by the employer. Planning Tip: Employers should consider organizing unit standards when establishing departmental structure, reporting relationships, job duties and training. Employers that cross-train and move employees across departments and positions can minimize the risk of micro-units. According to the NLRB, "significant interchange" between workers can demonstrate a community of interest. Common supervision is another factor that can weigh in favor of a larger unit. IV. NLRB May Significantly Broaden the Joint Employer Standard Recent actions by the NLRB signal a potential seismic change in the Board's 30-year old joint employer doctrine. In December 2014, the NLRB General Counsel’s office issued complaints against a national restaurant chain and 13 of its franchisees alleging that they jointly retaliated against workers who participated in protests over the minimum wage earlier in the year. According to the
NLRB’ General Counsel, the restaurant chain, “through its franchise relationship and its use of tools, resources and technology, engages in sufficient control over its franchisees’ operations, beyond protection of the brand, to make it a putative joint employer with its franchisees, sharing liability for violations of” the NLRA. In May 2014, the NLRB invited interested parties to file amicus briefs in Browning-Ferris Industries, Case 32-RC-109684, addressing whether the Board should adhere to its existing joint employer standard or adopt a new standard. In Browning-Ferris, the union filed a representation petition seeking certification as the representative of sorters, housekeepers and screen cleaners allegedly jointly employed by Leadpoint Business Services and BFI. The ALJ found that Leadpoint, a company that provides work teams for companies that operate material recovery facilities, was the sole employer of the workers. According to the ALJ, BFI did not "share or codetermine those matters governing the essential terms of employment" of the Leadpoint workers at its facility. Rather, Leadpoint was exclusively responsible for recruiting, screening, supervising, hiring and promoting its employees and determining their terms and conditions of employment (e.g., wages, schedules, holidays, duties, benefits). The union appealed, urging the Board to revert to its pre-1984 joint employer standard and adopt an "industrial realities" / "indirect control" test. Under this test, joint employer status would be established if one entity possesses sufficient authority over the employees or their employer such that meaningful bargaining could not occur in its absence. According to the union, BTI exerts sufficient control over Leadpoint employees because it, among other things, owns and operates the facility at which they work, sets shift times and overtime hours, determines the number of employees who work and where they work; and retains the authority to reject or discontinue using any workers for any reason. If adopted by the NLRB, this standard would impose a far-reaching expansion of the joint employer standard and increase the risk of a joint employer finding in common contractual business arrangements, including temporary staffing, subcontracting and franchise agreements. V. NLRB Strikes Down Long-Standing Deferral Rules On December 15, 2014, the NLRB issued a decision substantially departing from 30 years of precedent that will dramatically change the way disputes are handled under a collective bargaining agreement (CBA). In Babcock & Wilcox Construction Co., 361 NLRB No. 132 (2014), the NLRB revisited the so-called "deferral standard" used to determine whether parallel cases may proceed under a CBA's contractual arbitration provision and the NLRB's unfair labor practice (ULP) process. For the past 30 years, the NLRB would defer to the decision of an arbitrator in cases involving violations of Section 8(a)(1) and 8(a)(3) of the National Labor Relations Act. Section 8(a)(1) relates to interference with employee rights, and 8(a)(3) relates to discrimination for an employee's union activities or sympathies. In many cases relating to employment termination, an employee could
claim parallel rights under 8(a)(1) and 8(a)(3). To avoid re-litigating an issue already resolved by the parties in arbitration, any charge filed would be deferred so long as "the contractual issue is 'factually parallel' to the unfair labor practice issue, the arbitrator was presented generally with the facts relevant to resolving that issue and the award is not "clearly repugnant" to the Act." Olin Corp., 268 NLRB 573 (1984). Since Olin, an employer could rest relatively assured that it would not be subject to litigating employee terminations for employees covered by an existing CBA before the NLRB - and certainly not before both the NLRB and an arbitrator. In February 2014, the NLRB sought comments regarding the deferral standard at the urging of its General Counsel. The General Counsel sought a standard that would virtually eliminate deferral and allow NLRB jurisdiction over substantially more cases. In Babcock, the NLRB stopped short of the General Counsel's suggested standard, but nonetheless implemented a far more limited deferral standard than set forth in Olin. Now, the burden of proof has been shifted to the party seeking deferral (usually the company) from the previous burden which was placed on the party opposing deferral (usually the union). The standard has changed also. The party seeking deferral must show: The Parties Presented Statutory Arguments: In many termination cases, the parties argue only about "cause" under the CBA. The new standard requires more than that; parties must now include evidence and arguments about Section 8(a)(1) and 8(a)(3) where applicable to have an opportunity to argue deferral. The Arbitrator Evaluated Statutory Arguments (or was prevented from doing so by the party opposing deferral): It is not enough for the parties to argue statutory claims - the arbitrator must also evaluate them in making a decision. NLRB Law Reasonably Permits the Award: This additional standard requires the party seeking deferral to show not only that the arbitrator heard evidence and considered the statutory claims, but that the arbitrator followed NLRB precedent. As noted by NLRB Member Miscimarra in his dissent, the modified deferral standards “effectively guarantee that ... arbitration will not be final and binding. The outcome will be more work for the [NLRB], at the expense of speed, predictability, and certainty for the long litigation treadmill that is associated with [NLRB] and court litigation of unfair labor practice claims.” The current NLRB has shown that it intends to expand the scope of rights given to employees, and the new deferral standards will provide an expanded venue to enforce those rights. Planning Tip: Employers are almost certain to face some duplicative litigation before arbitrators and the NLRB. To enhance the ability to defer cases, employers should consider the following:
During contract negotiations, consider amending the grievance and arbitration provisions to specifically include NLRB statutory claims as covered causes of action. Before arbitration, confirm with the union and the arbitrator that both statutory and contractual claims will be raised (and ensure the arbitrator is experienced with NLRB statutory rights). Include evidence necessary to defend statutory claims during the arbitration hearing, and argue statutory claims and NLRB precedent in the post-hearing brief. Should the union oppose evidence relating to statutory claims, or the arbitrator refuse to accept such evidence, make a good record before the arbitrator by including offers of proof as to the evidence that would have been presented. Practical Implications for Employers Employers who have not updated their employee handbooks in recent years should do so now. It is clear from the NLRB's 2014 decisions that the NLRB will continue to aggressively attack employer handbook policies. In this regard, the precise wording of employer policies and work rules can make all the difference when it comes to assessing their validity under the NLRA. Accordingly, employers should choose their language carefully and consult with attorneys well versed in labor law to ensure their policies and practices comply with the NLRA. On the organizing front, the NLRB's new election rules have the potential to dramatically alter the landscape. Accordingly, employers should assess their labor relations policies and practices and consider whether to conduct additional training or planning related to union organizing activity. Similarly, employers should prepare for the possibility of quicker elections and develop an effective communications plan in advance to respond to union organizing. We will continue to monitor NLRB rulemaking initiatives and decisions. In the meantime, please contact any of the lawyers on our US labor team for more information about these developments and how to minimize labor risk in the New Year.
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