NLRB Expands Definition of “Protected Activity”
Employee Elias of grocery store Fresh & Easy Neighborhood Market was instructed to write a reminder about upcoming training on the Company’s whiteboard. After she wrote the reminder, someone drew an inappropriate picture near Elias’ name. Since Company policy prohibited her from taking a photo of the whiteboard, she drew a copy of the image and sought witness statements from co-workers to support the accuracy of the drawing. Elias then turned the drawing into the Company and complained that it amounted to sexual harassment. She never intended to file a joint complaint with the people who signed the document (and they denied any intent of participating in the complaint), but she thought other female employees would also be offended by the conduct and wanted to stop it from happening again.
According to the Board, this activity – an employee acting on her own behalf regarding a claim of sexual harassment directed solely at her – was “indeed engaged in concerted activity for the purposes of mutual aid or protection.” Really?
To be protected under Section 7 of the NLRA, employee conduct must be both “concerted” and for the purpose of “mutual aid or protection.” The fact that Elias may have had personal motivations for her actions was irrelevant to the analysis because both elements are judged from an objective perspective. The Board concluded that Elias’ conduct in seeking her coworkers’ assistance in raising a sexual harassment complaint to management was concerted activity even if she did not intend to file a joint complaint because: (1) concertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed; (2) Board precedent establishes that concerted activity includes not only true group complaints, but also cases “where individual employees seek to initiate or to induce or to prepare for group action,” and thus includes “preliminary individual discussions, as long as it is not solely by and on behalf of the employee himself;” and (3) it is well established that “the activity of a single employee in enlisting the support of his fellow employees for their mutual aid and protection is as much ‘concerted activity’ as is ordinary group activity.”
The Company questioned Elias as to why she obtained witness statements from her co-workers and directed her to stop collecting statements. These requests were lawful because they were narrowly focused and came during the Company’s investigation into Elias’ sexual harassment claims. The Company did not prohibit Elias from discussing the pending investigation with her coworkers, asking them to be witnesses for her, bringing additional complaints, or obtaining statements from coworkers in future complaints.
According to the two pro-employer Board members, Elias’ conduct should be considered concerted activity but the majority’s ruling created too loose a standard for finding that concerted activity was carried out for the purpose of mutual aid or protection. They stated, “We enforce a single statute that, on its face, does not afford protection to ‘individual’ action. The majority’s expansion of Section 7 – though well-intended – will impair employee rights and hinder the ability of employers to comply with statutes that require prompt, thorough investigations and meaningful corrective actions.”
NLRB to Refer Possible Violations to OSHA and Wage and Hour
You probably remember when I discussed how OSHA was referring claimants to the NLRB who had missed their statute of limitations to file an OSHA charge (“OSHA Actively Encouraging Employees to File Charges with the NLRB” – Employment Services Alert issued May 22, 2014). Thankful to OSHA for doing it a solid, the NLRB will now refer cases back to OSHA as well as to the Division of Wage and Hour.
According to Anne Purcell, Associate General Counsel of the NLRB, information obtained in NLRB investigations could suggest the presence of OSHA or FLSA violations if witnesses disclose facts indicating that an employer required employees to work in unsafe or unhealthy conditions or failed to properly pay employees for all the hours they work.
I fully anticipate Board employees to question workers about their pay and the safety of their working conditions while investigating alleged unfair labor practice charges. Board employees are not trained in the nuances of wage and hour law or the OSH Act, yet will make a preliminary determination whether either may have been violated. To quiet my cynicism of the NLRB being a one-stop-shop (which it doesn’t), Purcell said NLRB employees are not expected to be experts in the construction of the FLSA or the OSH Act, and they “should refer cases only where they believe that apossible violation of the OSH Act or FLSA presents itself.” So basically, solicit the information from employees and err on the side of caution by referring most cases to OSHA or Wage and Hour.
This is even more reason, though none was needed, that all companies, both union and non-union, must make sure all of their employment practices abide by all labor and employment laws.
The Ping Pong Legal Match that is Stopping Automatic Dues Deduction at the Expiration of a Union Contract
Under a dues check off provision, employers deduct employees’ union dues from their paychecks and forward the money directly to the union. Employees never see, and thus never miss, the money that they pay for dues and unions are not tasked with collecting dues money from each employee individually after that money has hit their own bank accounts. This is a critical component of a collective bargaining agreement and unions will trade away a lot in exchange for this clause. In 1962, the NLRB held that an employer’s dues check off obligation terminates upon expiration of a contract. See, Bethlehem Steel. Since then, savvy labor negotiators have ceased automatic dues deduction as a way to place economic pressure on a union during negotiations.
But, in 2012, an unconstitutionally appointed NLRB decided to overrule this 50-year-old precedent. See, WKYC-TV. According toWKYC-TV, it became an unfair labor practice to cease dues deduction upon the expiration of the contract. However, since the U.S. Supreme Court ruled in Noel Canning that the NLRB was unconstitutionally appointed, the law reverted back to Bethlehem Steel and companies are once again permitted to stop dues deduction after the expiration of a collective bargaining agreement.
The reversion to Bethlehem Steel will likely be short-lived. InLincoln Lutheran of Racine, an Administrative Law Judge, consistent with the law, followed Bethlehem Steel when approving the employer’s cessation of dues deduction. However, when the union appeals the ALJ’s decision, it is a foregone conclusion that the current Board will endorse the rulings of the invalid Board and once again overturn Bethlehem Steel. Lincoln Lutheran is set to be the case to accomplish the Board’s goal.
Handbooks are Still Being Overly-Scrutinized by the NLRB
I’ll be honest, I’m tired of warning companies that the NLRB is on a witch hunt to find minor violations of the National Labor Relations Act hidden inside handbooks of union and non-union companies alike. But, based on the number of clients who have proactively asked me to review their handbooks with an eye toward complying with the NLRB’s recent scrutiny, I have a lot more warning to do.
A management company for an Embassy Suites was the latest victim when the NLRB Administrative Law Judge took issue with several policies in its handbook. One policy prevented employees from accessing company property when not on duty without offering a business justification for the restriction. Another policy prohibited employees from speaking with the media. The Company’s confidentiality policy apparently could give employees the impression that they are prohibited from discussing their wages and terms and conditions of employment with one another.
This is just a sampling of the many policies under attack by the NLRB. The current Board has extended employees’ Section 7 rights under the Act to points never before contemplated. Standard employment policies incorporated into most every handbook now violate the law, according to the current activist Board. I cannot stress enough that every handbook of every company has a target on it. Take the time now to ensure that your handbook complies with the always-changing Section 7 of the NLRA.
Fox Television Stations Took a Round About but Effective Way to Reach Impasse
Fox Television Stations sought a wage reduction and other concessions from the Communications Workers of America during recent labor negotiations. When no agreement was reached by an agreed-upon deadline, Fox lawfully implemented an older contract offer much to chagrin of the CWA.
Fox and the Union had been negotiating a successor agreement for two years when in November 2012 the union rank and filed voted down a new collective bargaining agreement that was supported by the Union negotiators. After further negotiations, Fox told the Union it needed an affirmative ratification vote by the members in May 2013 or it would declare impasse and implement its November 2012 agreement. When the membership voted down the May 2013 contract, Fox declared negotiations were at an impasse and implemented the November 2012 proposal as its last, best, and final offer.
I caution companies against using this case as a blueprint to prematurely reach impasse. Rather, the facts here are unique. For example, the Union refused to give ground on most of the eight listed priority areas for Fox, the Union refused to recognize that it had already agreed to accept the November 2012 deal if the May 2013 one wasn’t ratified, and the Union engaged in regressive bargaining after rejecting the May 2013 offer. Only if your company’s facts start to parallel these should you consider following in Fox’s footsteps – but even then, seek the advice of competent legal counsel before declaring impasse.
What is No Longer the Law After Noel Canning Invalidated Obama’s Recess Appointments to the NLRB
Although many controversial cases were decided by the radical pro-union NLRB between the end of 2011 and mid-2013, what follows are some of the more notable decisions that are likely no longer the law – until, at least, the current Board has the opportunity to make them law again.
- In Re Piedmont Gardens held that employers were required to turn over witness statements to the union obtained during internal investigations if the statements are requested for arbitration or grievance.
- Alan Ritchey, Inc. held that newly unionized employers must bargain with the union before imposing discretionary discipline on employees represented by the union even before a collective bargaining agreement has been executed.
- Hispanics United of Buffalo, Inc. held that the termination of five employees for posts they made on Facebook was unlawful and employers were urged to be cautious when making any employment decision based on social media sources.
- Banner Estrella Medical Center held that employers must have a legitimate reason for ordering employees to maintain confidentiality during company investigations of employee complaints or misconduct. Further, “blanket rules” prohibiting employees from discussing the matters being investigated are prohibited.
- WKYC-TV held that employers could no longer unilaterally suspend dues check off after the expiration of a collective bargaining agreement.
While these cases are no longer good law, they will likely become law as soon as the NLRB has the opportunity to rule on cases with the same legal issues. For example, the Board will soon hearLincoln Lutheran of Racine and will likely re-implement the WKYC-TV holding. Hat tip to Reinhart Boerner, Van Deuren, S.C.
Kellogg Puts on a Clinic in How to Lock Out Employees
Kellogg Co. legally locked out over 200 union employees for nine months because a bona fide impasse had been reached after the union refused to negotiate proposals over mandatory subjects of bargaining. Specifically, Kellogg declared impasse, timely notified the Union of its demands so that the Union could evaluate whether to accept them and prevent a lockout, notified employees of a pending lockout if no agreement was reached, and then locked them out. All of this because the union refused to bargain over Kellogg’s desire to use an alternative crewing schedule and increase its use of “casual” workers who would receive lower wages than their union-represented counterparts and no benefits.
The Union argued in vain that Kellogg’s proposals violated the National Labor Relations Act because they constituted midterm modifications to the wage and benefit provisions of the parties’ master collective bargaining agreement that covers the company’s Ready To Eat Cereal facilities throughout the country. Each plant, however, is covered by supplemental agreements, and negotiations over alternative crewing and casual workers fell within the supplemental agreement’s jurisdiction, and thus a mandatory subject of bargaining.
Locking out employees is an extremely fact-sensitive endeavor that is littered with legal requirements. Many unsuspecting employers get tripped up over the nuances of the law and accidentally thwart the very bargaining strength that comes from lawfully locking out employees. Therefore, competent legal counsel should be sought before locking out employees.
Outsourcing: Always a Thorn in a Union’s Side
The International Association of Machinists union recently sued Spirit Aerosystems, accusing the company of violating the collective bargaining agreement through its plan to sell off part of its operations and outsource union-represented jobs at its Wichita facilities. According to the Union, Spirit is seeking to sell a key fabrication operation and use outside contractors to perform work currently done by IAM-represented fuselage sections.
Unions vehemently oppose outsourcing jobs because, according to them, it displaces union workers, which is why IAM sought an injunction prohibiting Spirit from outsourcing employees in tool supply, shipping, plant stores, and other support functions. If IAM waits a little longer, they could probably get the NLRB to tag Spirit and its outside contractors as joint employers thereby erasing any cost savings and operational flexibility Spirit gained by outsourcing union jobs in the first place. But the union didn’t hear that from me.
Handbook Savings Clauses Only Save Sometimes
Tiffany and Co. jewelry company had handbook policies that violated the National Labor Relations Act. One of Tiffany’s policies (the wages policy) prohibited employees from disclosing “information concerning the wages, benefits, or other terms of employment paid by the Company to employees in general, with respect to specific positions, or specific individuals.” Another policy (the media policy) barred disclosure of names, addresses, and telephone numbers of employees and forbade workers from speaking to media representatives about their employment without the company’s permission.
As a defense, Tiffany’s pointed to the savings clause in its handbook that said, “This Policy does not apply to employees who speak, write, or communicate with fellow employees or others about their wages, benefits, or other terms of employment in the exercise of their statutory rights to organize or to act for their individual or mutual benefits under the National Labor Relations Act or other laws.”
Unfortunately for Tiffany’s, some of their policies were deemed unlawful by the NLRB Administrative Law Judge. But, the savings clause immediately followed the wages policy and turned an unlawful handbook policy into a lawful one because the savings clause “essentially tracks” the unlawful rule, is “proximate to the rule it purports to inform,” and “expressly references the unlawful rule.” The rule was effectively canceled by the savings clause, and Tiffany’s did not commit an unfair labor practice by maintaining the wages policy.
As for the media policy, it was not immediately followed by the verbose savings clause and that clause did not cover all policies in the handbook. Accordingly, it was unlawful. As a warning, though, other cases have ruled that a savings clause, anywhere in a handbook, does not turn an otherwise unlawful policy into a lawful one. It is too soon to determine whether this case is an outlier or the beginning of a new trend, so employers should be mindful to review all their policies to ensure they do not infringe on employees’ Section 7 rights.