The NLRB's Expansion of Employee Rights Under the National Labor Relations Act Affects Both Union and Non-Union Workplaces

HIGHLIGHTS:

  • In 2014, the National Labor Relations Board (NLRB) scrutinized employer policies and practices, protected employee use of social media and employers' email systems to organize and engage in protected concerted activity, and issued rules to accelerate union elections.
  • As the NLRB expands employee rights under the National Labor Relations Act (NLRA) in ways that affect both union and non-union workplaces, employers should take steps to minimize risks of unfair labor practices and violations of the NLRA.
  • Employers should be proactive by evaluating their policies – including policies concerning confidentiality, social media and email – to determine whether those policies may restrict employees' exercise of protected rights.

In 2014, the National Labor Relations Board (NLRB or Board) scrutinized employer policies and practices, protected employee use of social media and employers' email systems to organize and engage in protected concerted activity, and issued rules to accelerate union elections. This alert reviews the significant labor law developments of 2014, and offers a brief summary of several decisions and practical steps for employers to identify and navigate potential National Labor Relations Act (NLRA) issues. Because the NLRA applies to both union and non-union workplaces, these Board decisions and labor law developments affect almost all employers. (For a review of the Board's activity in 2013, see Holland & Knight's alert, "NLRB 2013 Year in Review and 2014 Initiatives," Feb. 10, 2014.)

Current Composition of the Board

Throughout 2014, the Board operated as a fully constituted, five-member Board. Member Nancy Schiffer's term expired on Dec. 16, 2014. In December 2014, before control of the Senate changed to the Republicans, the Senate confirmed Lauren McFerran to the Board seat being vacated by member Schiffer. Member McFerran is formerly the chief labor counsel for the Senate Health, Education, Labor and Pension Committee under former Chairman Tom Harkin (D-Iowa). The Board is now comprised of three members with pro-union backgrounds and two members from the private sector with backgrounds representing management in labor disputes.

Impact of the U.S. Supreme Court's Noel Canning Decision

On June 26, 2014, the U.S. Supreme Court affirmed the D.C. Circuit Court's opinion in National Labor Relations Board v. Noel Canning. In short, the Supreme Court concluded that the President Obama's January 2012 appointment of three members to the Board was unconstitutional because it violated the Recess and Appointments Clause of the Constitution, and the ruling called into question the Board's decisions made after the January 2012 appointments. (For a review of the Supreme Court's decision, see Holland & Knight's alert, "The Supreme Court's Noel Canning Decision and the NLRB's Response," July 16, 2014.)

Following the Noel Canning decision, the Board began addressing its decisions that were affected by the Supreme Court's ruling. For example, on Dec. 16, 2014, the Board revisited the unfair labor practices charge brought against Noel Canning, which was the subject of the Board's February 2012 decision and order that ultimately led to the Supreme Court's decision. The now constitutionally appointed Board summarily adopted the previous Board's February 2012 order. Ultimately, the Supreme Court decision will likely have little impact on employers confronted with decisions that were rendered invalid by the Noel Canning decision, as the Board is likely to continue ratifying or adopting those decisions affected by the Supreme Court's decision.

Use of Employer Email for Union Organizing

The Board continues to protect employees' use of employers' email systems as a tool for union organizing and other protected concerted activity under Section 7 of the NLRA.

In Purple Communications, Inc., the Board reversed its 2007 Register Guard decision and significantly expanded the right of employees to use their employer's email systems for union organizing and other protected concerted activities. In Register Guard, the Board concluded that an employer may completely prohibit employees from using the company email system for noncompany-related purposes (including union organizing and engaging in otherwise protected activity), so long as the ban was not applied in a discriminatory way. In Purple Communications, the Board explicitly overruled Register Guard. The Board observed that the workplace is "uniquely appropriate" and "the natural gathering place" for employees to communicate about labor organizing, and the use of email is a common form of communication that has dramatically expanded since its Register Guard decision.

The Board concluded that employees who have rightful access to their employer's email system in the course of their work are presumed to have a right to use the email for union organizing, discussions about terms and conditions of employment, and other statutorily protected communications during nonworking time. The Board attempted to strike a balance between "accommodat[ing] employees' Section 7 rights" with "employers' legitimate interests" and will allow employers to rebut this presumption, including a total ban on nonwork use of email, "by demonstrating that special circumstances make the ban necessary to maintain production or discipline." The Board then went on to state that, because limitations on employee communications should be no more restrictive than necessary to protect the employer's interests, it "will be a rare case where special circumstances justify a total ban on non-work email use by employees." The Board also stated that employers will be required to articulate the specific legitimate interest at issue and demonstrate how that interest supports the restriction on the use of email.

Although the Purple Communications decision addressed only email use, the Board suggested that its analysis could be expanded to "[o]ther interactive electronic communications, like instant messaging or texting." The decision was also limited to email use by employees during nonwork hours. Consequently, employers may continue to restrict the use of its email system during working hours. (For a more in-depth review of this decision, see Holland & Knight's alert, "NLRB Expands Employees' Right to Use Employers' Email for Union Organizing," Dec. 16, 2014.)

Social Media and Employee Insubordination

The Board continues to protect employees' use of social media to organize and engage in protected concerted activity. In one case, the Board provided guidance by identifying the type of online conduct that crosses the line from protected concerted activity to advocating insubordination, which falls outside the protections of the NLRA.

In Three D, LLC (Triple Play), the Board concluded that a restaurant had violated the NLRA when it terminated an employee for making a Facebook post that was critical of the restaurant. 361 NLRB No. 31 (Aug. 22, 2014). A former employee of the Triple Play Sports Bar was upset that Triple Play had miscalculated her income tax withholdings, resulting in her unexpectedly owing taxes to the state. She posted a "status update" on Facebook criticizing the owners of Triple Play. In response to her post, other people, including current employees and customers, posted derogatory comments about Triple Play and its owners. One current employee, a waitress, posted that she also owed taxes and called the owners of Triple Play a derogatory name. Another employee, a cook, merely hit the "Like" button on "status update." Triple Play learned of the Facebook posts and fired the waitress and the cook. The Board ruled that Triple Play violated the NLRA. The waitress' comment, despite its use of profanity, constituted protected, concerted activity because it was a complaint about the terms and conditions of her employment. The NLRB further found that the cook's "Like" of the initial status update constituted an endorsement of the former employee's complaint, and was likewise protected.

The Board also took issue with Triple Play's social media policy, which stated that employees were subject to disciplinary action if they engaged in "inappropriate discussions about the company, management and/or coworkers ... ." The Board found that employees would "reasonably understand" the policy to prohibit employees from discussing the terms and conditions of the workplace and would improperly "chill" employees from exercising their rights under the NLRA.

In a subsequent case, the Board recognized a limitation on the employees' use of social media by upholding an employer's right to take action based on social media postings. In Richmond District Neighborhood Center, the Board ruled that employers have the right to terminate employees who make statements on social media demonstrating an intention to commit insubordination. 361 NLRB No. 74 (Oct. 28, 2014). After receiving offer letters for rehiring, two employees of a teen center had a conversation on one of the employee's publicly viewable Facebook page in which they stated that they were going to have parties at the teen center, take students on unauthorized field trips, and "take advantage, play loud music, get artists to come in and teach the kids how to graffiti up the walls and make it look cool." The conversation was also laden with profanity directed towards the employees' work at the teen center. The following day, the teen center's management rescinded the offer letters. The Board held that the employees' Facebook exchange "contains numerous statements advocating insubordination," which justified rescinding the employees' offer letters.

Richmond District is an example of social media conduct that constitutes insubordination and is not protected by the NLRA. The Board observed that the Facebook posts were "comprised of numerous detailed descriptions of specific insubordinate acts [that] constituted conduct objectively so egregious as to lose the [NLRA's] protection and render [the employees] unfit for further service." While the Board continues to recognize that email and social media are valid means of organizing and engaging in concerted activity, this case serves as an example of conduct that went too far.

Use of Profanity in the Workplace While Engaged in Protected Activity

In two cases addressing the permissible use of profanity in the workplace, the Board and an administrative law judge (ALJ) concluded that employees' use of unacceptable language was permissible when used while engaged in protected concerted activity.

In Hoot Winc, LLC, 31-CA-104872 (May 19, 2014), an ALJ overturned the termination of a waitress who directed profanity at a coworker while complaining about working conditions. A Hooters restaurant held its annual bikini contest, which was organized by the restaurant's marketing coordinator who was also competing in the contest. The marketing coordinator's friend and the friend's boyfriend served as judges for the competition. Participation was mandatory for certain waitresses and carried with it a cash prize. The marketing coordinator won the contest, which resulted in one of the waitresses complaining to management that the contest was rigged. The waitress congratulated the marketing coordinator "on cheating" and allegedly swore at her. The waitress was terminated. An ALJ found the termination of the waitress unlawful because it appeared that the restaurant used the bikini contest incident as an excuse to rid itself of an employee who had complained about working conditions. Given the mandatory nature of the bikini contest and the accompanying cash prize, the ALJ found that the employee was complaining about a working condition.

Similarly, in Starbucks Corporation, 360 NLRB No. 134 (June 16, 2014), the Board (for a second time) overturned the termination of an employee who engaged in a profanity-laced argument with a manager while in the presence of customers. A barista was known to be actively trying to unionize four Manhattan Starbucks locations. On two separate occasions, the barista got into arguments with management where he used profanity. In the first incident, the barista was agitated that an assistant manager did not respond quickly enough when the shop became busy, prompting the barista to direct profanity towards the assistant manager, resulting in a suspension of the barista. In the second incident, the barista, along with several other employees, went to the coffee shop while off duty to protest Starbucks' prohibition on wearing union pins while at work. During the protest, he was provoked by an off-duty assistant manager, which resulted in the barista directing profanity towards both the off-duty assistant manager and the assistant manager from the prior incident. Both incidents occurred while customers were present. Starbucks terminated the barista for his use of profanity, and, when assessing his suitability for re-hire, the store manager cited his "strong[] support" for the union as a reason he would be ineligible for re-hire.

In August 2010, the Board held that Starbucks had violated the NLRA because the barista's actions did not lose the protection of the NLRA under the Atlantic Steel factors. See 335 NLRB 636 (2010). Generally, in determining whether an employee's statements or discussions lose the protections of the NLRA, the Board considers four factors: "(1) the place of the discussion: (2) the subject matter of the discussion; (3) the nature of the employee's outburst; and (4) whether the outburst was, in any way, provoked by an employer's unfair labor practice." Atlantic Steel Co., 245 NLRB 814, 816 (1979). On appeal, the Second Circuit Court of Appeals overturned the Board's decision, finding that "the Atlantic Steel test is inapplicable to an employee's use of obscenities in the presence of the employer's customers." NLRB v. Starbucks Corp., 670 F. 3d 70, 80 (2d Cir. 2012). The court remanded the matter back to the Board.

The Board again overturned the barista's termination and found that Starbucks had engaged in unfair labor practices under a Wright Line analysis, which assess whether an employer's adverse employment actions against an employee are based on an anti-union animus, or if they are justified despite such animus. The Board applied Wright Line and found that the motivation for the barista's termination was due, in part, to the barista's pro-union activities. The Board also held that Starbucks failed to demonstrate that it would have terminated the employee absent the union activity. Because the off-duty assistant manager was not disciplined for provoking the barista, and because Starbucks mentioned the barista's union activity when terminating the employee, the Board found Starbucks' actions unlawful.

Employer Policies Restricting Sharing of Information

The Board continues to strike down employer policies – such as code of conduct, confidentiality and "no gossip" policies – that potentially restrict or chill employee discussions about work conditions.

In William Beaumont Hospital, an ALJ found that certain rules in a hospital's code of conduct may reasonably be interpreted to prohibit discussions and complaints that are protected by Section 7 of the NLRA. Case No. 07-CA-093885 (Jan. 30, 2014). Two hospital employees were fired after they made comments and engaged in discussions about understaffing and the suitability of inexperienced nurses in the wake of a newborn's death. The employees brought an unfair labor practices charge against the hospital, arguing that they were terminated for bringing these complaints to the attention of the charge nurses. The code of conduct prohibits "verbal comments or physical gestures directed at others that exceed the bounds of fair criticism," and "behavior ... that is counter to promoting teamwork." The ALJ noted that the code of conduct was neither created for the purpose of restricting employees' rights to engage in protected concerted activity, nor applied for the purpose of restricting protected activity. Nonetheless, those provisions could reasonably be interpreted to restrict otherwise protected activity and were therefore deemed unlawful. Notably, the ALJ did not overturn the firing of the two employees. She found that the employees conduct was condescending and sarcastic and that they "would have been terminated absent their protected activity" because an investigation by the hospital determined that their behavior was bullying, mocking and intimidating, which is not protected by the NLRA.

In MCPc, Inc., the Board struck down a confidentiality provision that stated "dissemination of confidential information within [the Company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination." 360 NLRB No. 39 (Feb. 6, 2014). An employee had access to company financial information, including salary information for senior executives. In a staff meeting, the employee complained about understaffing, and asserted that the salary paid to a new senior executive should have been used to hire more low level engineers. The employee was terminated for accessing the company's payroll information and disseminating that information to other employees. The Board found that the company's confidentiality provision was overbroad and that "[e]mployees would reasonably construe this rule to prohibit discussion of wages or other terms and conditions of employment with their coworkers – activity protected by Section 7 of the Act." The Board further found that the employee engaged in protected concerted activity when discussing the other terms and conditions of employment.

In Laurus Technical Institute, the Board affirmed the decision of an ALJ finding that a "no-gossip" policy, both facially and as applied, would prohibit virtually all discussion between employees without their supervisors present and would effectively prohibit all protected concerted activity. 360 NLRB No. 133 (June 14, 2014). An employee filed a complaint with the Equal Employment Opportunity Commission (EEOC) alleging sexual harassment and discrimination; she also discussed her EEOC complaint with her co-workers. The school's president gave the employee a verbal warning banning her from further discussion of her complaint with anyone except her supervisor. After the EEOC complaint was filed, the school issued a "no gossip policy" restricting employees from discussing, among other topics, one's own personal life, the personal life of one's co-workers, any negative or disparaging comments or criticisms of another person or persons; it also banned employees from "creating, sharing, or repeating information that can injure a person's credibility or reputation, ... a rumor about another person[or] ... a rumor that is overheard or hearsay," unless the employee and the employee's supervisor were both present.

The Board found that the "no-gossip" policy was an unlawful restriction on employees' Section 7 rights because it would effectively prohibit employees from complaining about the terms and conditions of their employment.

Employers should review their handbooks, policies and agreements (e.g., confidentiality agreements) to ensure that they are not so broad as to prohibit protected concerted activity.

Recordings in the Workplace

The NLRB has continued to address the permissible scope of employees making audio and video recordings in the workplace for the purposes of engaging in protected concerted activity.

In 2013, an ALJ upheld an employer's policy prohibiting the recording of workplace conversations where the policy was in furtherance of encouraging and maintaining an "open door" culture. Whole Foods Market, Inc., Case No. 01-CA-096965 (Oct. 30, 2013). But since the Whole Foods decision, ALJs have addressed several other rules prohibiting workplace recordings, striking them down in each instance:

In Muse School, 31-CA-108671 (Sept. 8, 2014), an ALJ held that a rule prohibiting private school employees from publishing recordings of celebrity donors unlawfully chilled employees from making protected recordings.

In Professional Electrical Contractors, 34-CA-071532 (June 4, 2014), an ALJ struck down a rule prohibiting employees from taking pictures at work or making recordings without management approval.

In Boeing Co., 19-CA-090932 (May 15, 2014), an ALJ invalidated a rule prohibiting employees from using their personal cameras to take pictures at a plant without management approval.

Unions often use recording devices to gather and preserve information for unfair labor practices charges or organizing efforts. It is important to note that state law governs whether a recording without consent is lawful) The Board's continued scrutinizing of employer policies that may limit or restrict such recordings demonstrates the Board's willingness to protect these rights over an employer's legitimate business interests.

NLRB Jurisdiction Over Religious Institutions

The NLRB announced a new standard for assessing whether an entity is a religious institution outside the jurisdiction of the Board. Pacific Lutheran, 361 NLRB No. 157 (Dec. 16, 2014). In Pacific Lutheran, the Union sought to represent a unit comprised of nontenure track (i.e., adjunct) faculty. Pacific Lutheran challenged the Board's jurisdiction under federal law, arguing that because it is a church-operated institution, it is exempt from the NLRA under the D.C. Circuit's decision in University of Great Falls v. NLRB, 278 F. 3d 1335 (D.C. Cir. 2002). The Board rejected Pacific Lutheran'sargument and promulgated a new two-prong test for determining whether the Board can exercise jurisdiction over a religious institution. The Board explained:

[W]hen a college or university argues that the Board cannot exercise jurisdiction over a petitioned-for unit of faculty members because the university is a religious one, [1] the university must first demonstrate, as a threshold requirement, that First Amendment concerns are implicated by showing that it holds itself out as providing a religious educational environment. Once that threshold requirement is met, [2] the university must then show that it holds out the petitioned-for faculty members themselves as performing a specific role in creating or maintaining the college or university's religious educational environment, as demonstrated by its representations to current or potential students and faculty members, and the community at large.

In applying this new test, the Board determined that Pacific Lutheran met the first prong of the test as a religious institution. But the Board concluded that Pacific Lutheran failed the second prong because the nontenure track faculty were not teaching religious subjects and the university did not hold out its faculty as "performing any religious function in creating or maintaining its religious educational environment."

The Pacific Lutheran test makes it more difficult for religious institutions to challenge the Board's jurisdiction, and it is likely that unions will rely on Pacific Lutheran in connection with their organizing efforts at religious colleges and universities. It is also expected that this issue will be further addressed in federal court actions that challenge the Board's decision.

Class Action Waivers

In Murphy Oil USA, Inc., the Board reaffirmed its 2012 decision in D.R. Horton, Inc., that class and collective action waivers in employment agreements are unenforceable because such waivers interfere with the fundamental principle under the NLRA that employees have a right to act collectively to improve their working conditions, and because such waivers could lead employees to reasonably believe that they are prohibited from bringing actions against their employers before the Board. 361 NLRB No. 72 (Oct. 28, 2014). The Board's Murphy Oil decision represents a distinct departure from decisions by the Second, Fifth and Eighth Circuit Courts of Appeal, which have held that employers can require that employees sign class and collective action waivers so long as those waivers do not prohibit employees from exercising their rights under the NLRA. (For an in-depth analysis of this decision, see Holland & Knight's alert, "Murphy Oil USA, Inc.: NLRB Holds on Class Action Arbitration Agreements," Nov. 10, 2014.)

In Murphy Oil, the employer required its employees to sign a "Binding Arbitration Agreement and Waiver of Jury Trial" as a condition of employment. As part of the agreement, employees agree to waive their right to commence, be a party to, or act as a class member in any class or collective action in any court or arbitration. In July 2010, several employees brought a collective action under the Fair Labor Standards Act (FLSA) in federal District Court. In September 2012, the court stayed the employees' FLSA claims pending arbitration, which the employees did not appeal. In addition to its federal court action, in January 2011 the employees filed an unfair labor practices charge before the Board and the Board's general counsel issued a complaint alleging that Murphy Oil violated the NLRA by enforcing a mandatory arbitration agreement that prevents employees from filing unfair labor practices charges. The Board affirmed its D.R. Horton decision and concluded that such waivers were unenforceable under the NLRA. The Boarddistinguished its decision from the Fifth Circuit's D.R. Horton opinion by finding that class action waivers act to extinguish a "substantive" right under the NLRA, and not a "procedural" right, as expressed by the circuit court. The Board further noted that the U.S. Supreme Court has "emphasized often that the [Board] has the primary responsibility for developing and applying national labor policy" and the Fifth Circuit's decision "gives too little weight to this policy." As a result, the Board and the circuit courts continue to be split on this issue.

On Nov. 6, 2014, Murphy Oil filed a petition for review, which is currently pending before the Fifth Circuit Court of Appeals.

NLRB Expands the Joint-Employer Doctrine

The NLRB has taken an expansive view of the "joint employer" doctrine in its effort to hold customers of staffing companies responsible for alleged labor violations by the staffing company and franchisors liable for alleged labor law violations by independently owned and operated franchisees.

In May 2014, the NLRB invited interested parties to submit briefs in a contract dispute where a union of sanitary truck drivers had asserted that Browning-Ferris Industries of California, Inc. (BFI) and Leadpoint Business Services are joint employers for bargaining purposes. Case No. 32-RC-109684 (May 12, 2014). Leadpoint is a staffing agency that subcontracts with BFI to provide workers for the sanitation facilities owned by BFI. The union contends that BFI controls every aspect of the operation, including the working conditions for its employees. In August 2013, the acting regional director issued a decision in favor of BFI, but the Board granted review on April 30, 2014, and invited amici briefs on the issue of whether Leadpoint is the sole employer or whether the Board should adopt new standards for analyzing joint employer status. The Board has not issued a ruling in the Browning-Ferris matter.

In another case, the general counsel expanded its interpretation of the "joint employer" doctrine by attempting to hold the franchisor of independently-owned and -operated fast food restaurants responsible for the actions of the independent franchised restaurants. On Dec. 19, 2014, the general counsel issued complaints naming McDonald's USA, LLC as a "joint employer" of those workers who are employed by independently owned franchises. The general counsel has issued the complaints as a result of disciplinary actions faced by workers at local franchised restaurants, which the workers allege were based on their lobbying for increased wages and other benefits. The general counsel has taken the position that McDonald's should be treated as a "joint employer" because, according to the general counsel, McDonald's requires its franchisees to adhere to very strict operating rules and regulations such that they are in complete control of the franchise's operations. On the other hand, McDonald's has stated that the local franchise owners are responsible for, and make, their own decisions concerning their own hiring, firing, supervising, disciplining and setting wages, and are in control of local working conditions.

The general counsel's more expansive view of the "joint employer" doctrine signals that the general counsel will likely take more steps to attempt to hold customers of staffing companies, franchisors and others liable as joint employers for alleged unfair labor practices. If the Board and the courts were to accept the general counsel's expansive view of joint employment, it would have a major impact on franchising and other common industry structures.

College Athletes as Employees

On March 26, 2014, the NLRB regional director for Region 13 held that football players who receive scholarships from Northwestern University are "employees" under the NLRA and therefore are eligible to unionize. Case No. 13-RC-121359 (March 26, 2014). The regional director found that the scholarship football players meet the common law definition of "employee" because they receive compensation for their service in the forms of athletic scholarships and stipends, and because the coaches and staff of the university football program closely control the football players' daily activities. The regional director distinguished Northwestern's football players from other students who are paid by the university. In the NLRB's 2004 decision in Brown University, the Board concluded that graduate assistants were not employees under the NLRA because they "have a primarily educational, not economic, relationship with their university," despite receiving compensation from the university and being held out in other respects as teachers. The regional director in the Northwestern University case distinguished the Northwestern football players from the Brown University graduate assistants, finding that, in addition to compensation, Northwestern exerts significant control over the players' daily tasks.

Northwestern appealed the regional director's decision to the full Board, which has not yet issued a decision. An election was held in April 2014, but the votes remain impounded pending review by the Board, therefore the results are unknown at this time. The Board's decision in this case may have far-reaching consequences beyond the student-athlete context. The NLRB has invited briefing in which it asked the parties to address whether it should "adhere to, modify, or overrule the test of employee status applied in [Brown University], and if so, on what basis?" If the Board overrules its Brown University precedent and affirms the regional director's Northwestern University decision, it could open the door for other student-employees to explore unionization.

Micro-Bargaining Units

The Board's decisions have provided further guidance on the appropriateness of "micro-bargaining" units. Although the Board has given deference to a union's chosen composition, it has also required that proposed units follow the organizational structure of the employer.

In Macy's Inc., the Board approved the representation petition of a micro-unit limited to 41 store employees assigned to the cosmetics and fragrance department. 361 NLRB No. 4 (July 22, 2014). Despite opposition from trade groups, this decision represents an expansion of the Board's 2011 Specialty Healthcare ruling beyond the healthcare setting and into the retail space. Macy's objected to the proposed bargaining unit on the grounds that the 41 cosmetics and fragrance employees share a community of interest with the other 80 salespeople, including sharing the same shifts, same benefits, same store manager, use of the same break room and evaluations based on the same criteria. The Board ruled in favor of the union, finding that the cosmetics and fragrances department employees constituted "a readily identifiable group who share a community of interest, and that [Macy's] has not met its burden of demonstrating that the other selling and nonselling employees it seeks to include share an overwhelming community of interest with the petitioned-for employees so as to require their inclusion in the unit." The Board found compelling that the cosmetics and fragrance employees have limited interaction with salespeople from other departments, and can be found in the same location in the store, selling the same goods.

Less than a week after its Macy's Inc. decision, the Board rejected the proposed micro-unit in Bergdorf Goodman. 361 NLRB No. 11 (July 28, 2014). In Bergdorf Goodman, a union sought to represent a unit comprised of 35 women's shoes sales associates and 11 women's contemporary shoes sales associates. The employer separates the two groups into separate departments. Although the women's salon shoes is its own department, the 11 women's contemporary shoes sales associates belong to the contemporary sports department, which is on a different floor from women's salon shoes. The Board found that the union's attempt to carve the women's contemporary shoes sales associates out of the larger contemporary sports department was a "departure from any aspect of the Employer's organizational structure" and that the union failed to show that the salon shoes and contemporary shoes sales associates otherwise shared sufficient community of interest.

Board Adopts Expedited Union Election Procedures

The Board has renewed its efforts to expedite union elections.

In 2011, the Board first proposed rules to compress the election timeline in representation cases, but was met with swift federal court challenges and ultimately blocked. On Dec. 12, 2014, the Board again adopted a final rule amending its representation case procedures, which were published in the Federal Register on Dec. 15, 2014. The Board has adopted these rules over objections by employers that the new rules will allow unions to push for elections before employers have had an adequate opportunity to address the appropriateness of the proposed bargaining unit, or to fully explain to its employees what a vote in favor of the union would mean for them. The new rules are scheduled to go into effect April 14, 2015. (For an in-depth analysis of the new rules, see Holland & Knight's alert, "NLRB Adopts Expedited Union Election Procedures," Dec. 18, 2014.)

Under the new rules, an employer will be required to provide a list of eligible voters to the union approximately one week after the petition is filed, and before there has been a hearing on any issues concerning the petition. Currently, an employer need only provide an Excelsior list of eligible voters within seven days after representation issues have been resolved, either by agreement or after a hearing and the subsequent regional director's decision requiring an election. Additionally, under the new rules, an employer must include email addresses and telephone numbers for eligible voters, and provide the Excelsior list within two business days of the approval of an election agreement or a direction of election. The new election rules also compress the timetable for holding an election and affect what representation-related issues can be resolved before the holding of an election. Pre-election hearings will be limited to questions concerning the appropriateness of a unit, but will no longer be able to challenge the inclusion of any particular employee in a bargaining unit.

On Jan. 5, 2015, the U.S. Chamber of Commerce and the National Association of Manufacturers filed a lawsuit seeking injunctive relief in the U.S. District Court for the District of Columbia to block the new rules. In the lawsuit, the employer groups contend that the proposed rules violate employers' First Amendment right to communicate effectively in response to union organizing efforts, and that the proposed rules deny employers' due process rights to oppose union organizing.

Employers: Be Proactive in Evaluating Your Policies and Training Management

As the Board expands employee rights under the NLRA in ways that affect both union and non-union workplaces, employers should take steps to minimize risks of unfair labor practices and violations of the NLRA. Employers should be proactive by evaluating their policies – including policies concerning confidentiality, social media and email – to determine whether those policies may restrict employees' exercise of protected rights. Additionally, when taking an adverse employment action against an employee for certain misconduct, managers and human resources professionals should consider carefully whether the employee's conduct is arguably protected concerted activity. Employers should train managers and supervisors on the NLRA and employee rights. The bottom line is that with expanded employee rights and increased focus by the Board on both union and non-union workplaces, employers must focus on the labor law issues in their own workplaces to ensure compliance with the NLRA.