Parties Continue to Voice Opposition to Proposed Joint Employer Change

The Board continues to consider arguments of litigants and interested parties in Browning-Ferris Industries, in which the NLRB is considering whether to revise its joint employer test. The last case activity in Browning-Ferris occurred in July of 2014, amici filings ended in June of 2014. The nuts and bolts of the proposed changes are outlined in last month’s LMVT Employment Law Bulletin.

The latest opinion on the issue comes from the Competitive Enterprise Institute (CEI), which has written a  paper, dated June 1, 2015, claiming that the GC of the Board is “pushing a radical redefinition” of employer- employee relationships under the NLRA. The CEI urges that Congress take legislative action to relieve “businesses and workers who would suffer as a result of the NLRB’s aggressive, pro-union agenda.”

In its paper, CEI argues that the standard proposed by GC Griffin in Browning-Ferris “would be broad and sweeping enough to classify typical franchises, contractors, staffing agencies and suppliers as joint employers.” Stating that joint employers can be sued “more readily” for alleged employment misdeeds, CEI contends that “more parties and deeper pockets to sue translate into more business costs and hampered job growth.”

Stay tuned for further developments.

Right-to-Work Laws – Under Attack by the NLRB?

In a potentially damaging move that signals possible changes to right-to-work laws, the Board has invited parties to file briefs on whether the NLRB should reconsider a long-standing rule that in the absence of a valid union-security clause, a labor organization may not charge non-members a fee for processing their grievances. Steelworkers Local 1192 (Buckeye  Fla. Corp.) (2015). Brief filing must be completed by July 15, 2015.

Union security clauses are clauses in a CBA where the employer promises to require the covered employees to join the union or pay union dues. Right to Work laws prohibit these clauses.

The current law, established in 1976, states that the right to avail oneself of the grievance process is a “matter of right,” and that discriminating against non-members by charging them for what is due them under the labor laws is a violation of the NLRA. In other words, the union has to support free riders in their grievances against the employer.

It remains to be seen if the case in question will be the first  step  in  eroding  right-to-work  laws,  as  the current  litigation only applies to the “processing of grievances.” Right-to-Work laws are specifically authorized by Section 14(b) of the NLRA.

NLRB Finds that Ban on Vulgar Union Buttons and Stickers Unlawful

The NLRB has found that an employer’s ban on admittedly vulgar union buttons while at work was illegal. Some buttons read “WTF Where’s the Fairness” and “Cut the Crap! Not My Healthcare.” On June 2, the three- member Board panel found that

… the possible suggestion of profanity, or ‘double entendre’ … is not sufficient to render the button and stickers unprotected  here, where an alternative, non-profane, inoffensive interpretation is  plainly visible and where, further, the buttons and stickers were not inherently inflammatory and did not impugn the Respondents’ business practices or product.

In so finding, the Board determined that the employer failed to demonstrate any special circumstances that would outweigh employees’ Section 7 right to wear union insignia. In particular, the NLRB rejected the employer’s argument that allowing the buttons and stickers would violate company policy against non-branded apparel and a separate standards/dress code policy.

This case is yet another example to the NLRB pushing the bounds of common sense and making it extremely difficult for employers to maintain any civility in the workplace.

Board Ruling Finding Facebook ‘Like’ Button Protected Faces Scrutiny

In Triple Play Sports Bar, the Board considered whether merely “liking” statements on Facebook constituted protected, concerted activity. In adopting the ALJ’s decision, the NLRB concluded that the Employer unlawfully discharged two workers over a profanity-laced Facebook discussion criticizing the employer’s tax withholding calculations.

This case was discussed most recently in the LMVT September 2014 ELB, and the sports bar has urged the Second Circuit Court of Appeals to deny enforcement of the Board’s 2014 Order. On June 15, 2015, in its reply brief to the NLRB’s application for enforcement, Triple Play argued that:

It cannot reasonably or logically be concluded that an employee’s ‘liking’ of a defamatory statement by a non-employee is intended to improve the terms and conditions of employee’s employment.

Critically, the sports bar’s arguments appear to hinge on the presence of customers when the offending comments were made. Triple Play notes that two “patrons” participated in the online discussion. Triple Play went on to note that the use of obscenities in front of customers does not have to be tolerated by an employer, even when not made at the company premises but made online.

As previously noted, if the ruling on appeal is adverse for the Agency, it could be a signal that the Board’s aggressive enforcement posture will not be rubber- stamped by the U. S. courts.

Is “Virtual Organizing” on the Horizon?

A liberal think tank, the Century Foundation (CF), which claims on its website that it “seeks to foster opportunity, reduce inequality, and promote security at home and abroad”, argues that the time is ripe for an online tool enabling workers to efficiently organize union support and file representation petitions with the NLRB that would allow employees to “leverage recent [Board] decisions and provide an “essential boost” for union organizing. In other words, CF is advocating that union organizing take place in secret, where employers are blind-sided by employee support for a union and have very little time to respond to an organizing campaign. The article states, in part:

Given the success of many commercial and consumer based online tools, why shouldn’t there be a new, highly sophisticated online tool that  leverages  state-of-the-art  technology  to help promote one of America’s bedrock values: getting a fair shake at work

The Board seems to endorse online organizing, and has laid the ground work for future efforts on this front. The decision in Purple Communications, Inc., 361 NLRB No. 126 (2014), which allows the use of company email during nonwork time to engage in protected, concerted activity, and the implementation of the rule amendments to the election rules (quickie election rules) are two examples of NLRB recognition of new organizing techniques.

The Century Foundation article was written by the same authors that wrote the 2012 book Why Labor Organizing Should Be a Civil Right. LMVT will continue to monitor developments as they unfold. It remains to be seen if unions take advantage of the demographics of “younger workers,” which currently drive social media and digital platforms in the workplace.