An NLRB Administrative Law Judge (ALJ) ruled that parts of the William Beaumont Hospital’s Code of Conduct for Surgical Services and Parianesthesia that forbade comments that went beyond “fair criticism” and proscribed behavior detrimental to “promoting teamwork” were too broad and at odds with Section 7 of the National Labor Relations Act (NLRA or Act). The ALJ reasoned that although the employer had a legitimate interest in establishing rules to maintain a safe work environment, these rules were overbroad, ambiguous and could reasonably be interpreted to prohibit lawful discussions or complaints about work activities that the Act is intended to protect. Additionally, the ALJ found that an oral instruction not to discuss an investigation into inappropriate conduct was unlawful, but upheld the employee terminations at issue in the case, ruling that the individuals would have been terminated in any event. William Beaumont Hospital and Jeri Antilla.

A three-judge panel of the U.S. Court of Appeals for the Second Circuit unanimously ruled that a former New York Institute of Technology professor was time-barred from pursuing a fair representation claim against his union. Following an arbitration where the professor’s termination was upheld, the professor filed a petition in state court to vacate the ruling. The petition was denied more than six months later, at which time the professor tried to sue the union for breach of its duty of fair representation. The panel upheld a lower federal court’s ruling that rejected the professor’s attempt to get around the NLRA’s six-month statute of limitations for employees to bring suit against their unions. Relying on precedent from other circuits, the panel reasoned that the petition to vacate did not toll the statute of limitations because the arbitrator’s decision was an “optional, parallel” method of relief, separate from his grievance against his own union. Kalyanaram v. American Association of University Professors At The New York Institute of Technology, Inc.

An NLRB ALJ held that an auto dealership must take affirmative steps to make sure its employees are aware of its new social media policy, despite having amended a prior policy after consulting with NLRB staff. Initially, a local branch of the International Association of Machinists sued the auto dealership over allegedly unlawful social media policies in its employee handbook. The policy stated that employees were barred from discussing their conditions of employment with other employees, unions or the media. Once the dealership changed the policy to comply with recent NLRB rulings, it argued the allegations were moot. However, the ALJ stated that merely changing the policy was not enough and ordered the dealership to post a notice explaining the new policy update. The ALJ reasoned that under Board precedent, merely disavowing prior unlawful statements does not always remove the need for remedial action, especially where no assurances are made by the employer to refrain from interference with employee rights in the future. Boch Imports Inc.

The U.S. Court of Appeals for the Fifth Circuit recalled the recently issued mandate from its December 2013 D.R. Horton ruling and allowed the NLRB 45 days to file a petition for a rehearing. The mandate is now stayed until March 20, 2014. Although if the NLRB decides to file a petition for certiorari in the U.S. Supreme Court, the stay would remain in place until that Court issues a final decision. The NLRB is seeking to challenge the Fifth Circuit’s rejection of the NLRB’s prior decision that mandatory arbitration agreements which bar employees from pursuing class or collective actions violate workers’ rights under the NLRA. D.R. Horton Inc. v. NLRB.

Ruling on an issue of first impression, a federal judge in the Northern District of California ruled that Kaiser Foundation Health Plan Inc. must face trial against the National Union of Healthcare Workers (NUHW) in a suit based on claims that Kaiser violated the Labor Management Relations Act (LMRA). In denying Kaiser’s motion for summary judgment, the judge held that a jury could reasonably find that Kaiser allowed supporters of the incumbent union, the Service Employees International Union-United Healthcare Workers West (SEIU-UHW), to go on leave with paid benefits because Kaiser preferred the incumbent union and wanted to defeat a challenge by the NUHW. The court found the benefit payments could violate LMRA §302 because those employees sought reimbursement for time spent campaigning for SEIU-UHW, an activity that benefited the union but could not be justified as providing a legitimate benefit to the employer. Nat’l Union of Healthcare Workers v. Kaiser Foundation Health Plan, Inc.

The NLRB affirmed an ALJ’s decision that technology company MCPc Inc.’s confidentiality policy violated the NLRA because it was too broad. The policy stated that “dissemination of the confidential information within [the company], such as personal or financial information, etc., will subject the responsible employee to disciplinary action or possible termination.” The Board found that employees could reasonably construe the policy’s language as prohibiting discussion of wages or other conditions of employment with fellow employees. The Board also upheld the ALJ’s decision that MCPc had wrongfully discharged an employee for engaging in protected concerted activity under the policy. The employee had been terminated for making complaints about employee workloads and an executive’s salary during a company luncheon. MCPc Inc. and Jason Galanter.

An ALJ for the NLRB ruled that janitorial services company Haynes Building Services LLP’s arbitration agreement policy was unlawful because applicants and employees could reasonably construe the policy’s language as precluding the filing of an unfair labor practice charge. However, the judge noted that although he was bound by the Board’s decision in D.R. Horton to find such arbitrations agreements unlawful, the Fifth Circuit had rejected D.R. Horton on this basis. He further opined that the reasoning upon which the D.R. Hortondecision was based would not survive scrutiny by the U.S. Supreme Court. Under D.R. Horton, an employer violates the NLRA when it requires employees to sign agreements that waive their right to pursue class claims in any forum. Ultimately, the judge here ruled that the company did not violate the law because the facts did not show that the company required all applicants to sign the agreement in question, but rather was threatening to enforce the agreement against an employee who signed it prior to the D.R. Horton ruling. Haynes Building Services LLP.

The NLRB held that an Amalgamated Transit Union local was not required to remove comments from the union’s Facebook page that were posted by striking union members disparaging those workers who chose to continue working through the strike. The case concerned a six-day strike by Veolia Transportation Services Inc. bus drivers. The Board’s General Counsel argued that the picket line was electronically extended when the union failed to disavow the disparaging Facebook posts, and cited prior authority that unions have been found to be similarly responsible for failing to disavow threats by striking employees from the actual picket lines. However, the Board found that the Facebook remarks themselves did not amount to threats under the law. The Board was swayed by the fact that that the individuals who posted the comments were neither alleged to be nor found to be union agents. Amalgamated Transit Union, Local Union No. 1433, AFL-CIO (Veolia Transportation Services Inc. Phoenix Division).

The NLRB overturned an ALJ’s ruling that Quad Graphics Inc., a unit of World Color (USA) Corp., violated the NLRA when a supervisor indicated that an employee had been reassigned to a different position because of posts he made on his Facebook page that were critical of the company. The Board found that there was insufficient evidence to prove that the posts were protected activity. After the employee posted the comments, he was reassigned within the company. Soon thereafter, that employee’s supervisor remarked to the employee that the company was aware of his Facebook activity. In rejecting the ALJ’s ruling, the Board stated that the record did not include a printout of the employee’s post and provided scant evidence regarding their nature. World Color (USA and Conference of the International Brotherhood of Teamsters, Local 715-C.

In a memorandum from the NLRB Division of Advice, the NLRB Assistant General Counsel (AGC) found that Walmart did not violate the NLRA when it terminated two employees who had participated in demonstrations by the United Food and Commercial Workers (UFCW) and Organization United for Respect at Walmart (OUR Walmart) in two Florida stores. The AGC wrote that although the employees participated in protected activity, Walmart was able to show that it would have fired the employees for otherwise valid reasons. One employee repeatedly took excessive work breaks, while the other was terminated for an alleged food safety violation following progressive discipline spanning 16 months. Additionally, the AGC found that Walmart did not violate the NLRA when a manager tried to photograph OUR Walmart demonstrators who had entered the store and blocked the cash registers. The memorandum concluded that the employer reasonably believed that most of the individuals were not employees who were trespassing, and that the photographs would have been relevant to the ongoing litigation over that kind of activity.

The NLRB invited interested parties to submit briefs on the question of whether the Board has jurisdiction over universities with religious affiliations such that non-tenure-eligible professors are entitled to join unions, or whether they are excluded as managerial employees. The issue stems from a prior NLRB regional director’s decision that Pacific Lutheran University was not a religious institution exempt from NLRB oversight and that these non-tenured professors did not have sufficient responsibility such that they could be classified as managers. The director’s decision was based on the fact that the school’s mission statement had no religious references and that students did not have to be Lutheran to attend. Among the questions asked by the Board were what tests should be used to determine whether schools that self-identify as religious should be exempt, and whether different standards should be used to determine whether academics were managerial employees.