Labor & Collective Bargaining : Unions Lawyer & Attorney : Jackson Lewis Law Firm : Employee Free Choice Act, Collective Bargaining

 Author: Daniel Schudroff

Under the National Labor Relations Act, an employer is not permitted to bypass a union and deal directly with employees in connection with their terms and conditions of employment. This direct dealing concept can become complicated, however, when an individual employee asserts a legal proceeding against the employer in which the employee’s union is not a participant and is not involved in settlement negotiations.

Recently, the National Labor Relations Board’s Office of the General Counsel, Division of Advice, encountered this factual scenario in American Water Service Co., 15-CA-086838 (Div. of Advice, Apr. 30, 2013). In this case, an employee suffered a workplace injury and retained an attorney to seek worker’s compensation benefits. Over three years later, with the worker’s compensation action still pending, the employer discharged the employee. The employee’s union grieved the employee’s discharge. A month later, the employee settled the worker’s compensation claim with the employer, and as a term of the settlement, the employee signed a general release which forfeited her right to assert a claim against the employer in connection with her separation. The employer’s representative who typically handled union grievances was unaware of the worker’s compensation settlement and the employer’s worker’s compensation agent was unaware of the union’s grievance.

                The Division of Advice preliminarily noted that the Act “requires an employer to attempt to afford the union notice and an opportunity to be present for settlement discussions regarding individual employee claims…, where the employer’s proposed settlement would effectively resolve the union’s grievance over the employee’s discharge.” Based on this standard, the Division of Advice found that the employer engaged in direct dealing, because, although the employer inadvertently failed to apprise the union of the settlement agreement, “the agreement on its face effectively settled the [employee’s] discharge allegation by precluding her from pursuing [sic] any claim arising from her employment.”

                Ultimately, however, the Division of Advice recommended the Region dismiss the charge because the employer assured it would permit the union to arbitrate the employee’s grievance provided the union did not seek reinstatement or monetary considerations. Alternatively, the employer agreed to permit the employee to rescind the agreement so the union could seek a reinstatement and/or monetary remedy in arbitration.

                This case demonstrates that employers must be mindful of their obligations to provide an employee’s union the chance to be present for settlement negotiations in connection with an individual employee’s lawsuit or administrative proceeding or else risk an unfair labor practice charge asserting unlawful direct dealing. In addition, this guidance highlights the importance of ensuring there is open communication between an employer’s various attorneys/agents who may be representing the employer in more than one forum with respect to the same employee.

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Authors: Daniel Schudroff and Linda Carlozzi

On May 7, 2013, the National Labor Relations Board’s rule which would have required all employers covered by the National Labor Relations Act to post a notice informing workers of their rights under the Act was struck down by the U.S. Court of Appeals for the District of Columbia Circuit in National Association of Manufacturers v. NLRB, No. 12-5068. This is yet another blow to the NLRB; this Court recently ruled that President Barack Obama's January, 2012 recess appointments to the NLRB were invalid in the Noel Canning decision.

The NLRB regulation would have required all employers covered by the NLRA (approximately 6 million employers) to conspicuously post a notice informing employees of their right to organize as well as engage in other protected activities, and listing NLRB contact information.

The separate requirement under Executive Order 13496 for some federal contractors to post is unaffected by this ruling.

A link to the decision can be found here.

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Employers may be interested in a recent post on the Jackson Lewis LLP Workplace Resource Center discussing a recent NLRB decision about  protected concerted activity.  Click here for more information.

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Author: Tom Walsh

The NLRB’s recent decision in Norquay Construction, Inc., 359 NLRB No. 93 (April 15, 2013) has caused some concern. Some of the facts in Norquay are somewhat unusual: a union agent who wanted to uphold so-called “area standards” and was being ejected from the employer’s construction site was found to have fallen down stairs upon being pushed by an employer agent. At trial, the Administrative Law Judge decided that while pushing the agent may have been an unlawful act, it was not specifically an unfair labor practice under the National Labor Relations Act. The Board reversed the ALJ, finding the NLRA’s protection extends to union agents acting to uphold area union labor standards, and thus, the employer’s conduct was an unfair labor practice.

This conclusion is not the surprising part of its decision. The surprising aspect to many Board observers is that the remedy imposed by the NLRB for the employer’s putative assault included not only back pay, but also medical expenses “if it is shown… that [the union agent] incurred medical expenses and suffered a loss of pay and benefits as a result of the unlawful assault.” Such a remedy, while not unheard of, is rare. The ALJ made no findings as to whether the union agent was injured and, as a result, about whether he lost wages or benefits. The Board ordered that these be determined through the post-case NLRB compliance process. If it is found that union agent incurred medical expenses, they will be awarded.

The employer argued that an award of medical expenses would be inappropriate. The NLRB, mindful that this remedy is suspiciously close to a tort remedy, cited two of its decisions to explain why an award of medical expenses is an appropriate remedy. In Freeman Decorating Co., 288 NLRB 1235 (1988), the Board acknowledged it does not award tort remedies. Instead, medical expenses awarded under the Act are not for physical injuries suffered, but for reimbursement of medical and rehabilitative expenses not covered by insurance. (In Freeman, the individual who had been discriminated against was an employee who had been unlawfully discharged and lost insurance coverage.)

The Board also cited Nortech Waste, 336 NLRB 554 (2001). That case also involved an employee. The employee had been discriminatorily assigned to a less-desirable job and suffered an injury at that job. The NLRB ordered the employer to provide backpay, lost benefits, and medical expenses up to the time when she was medically released to return to work. The Board explained its “prior reluctance” to award medical expenses thusly: while tort remedies for “nonspecific” personal injuries like pain and suffering are within the expertise of state tort actions, medical expenses arising from the employer’s discriminatory acts “are specific and easily ascertained.”

As noted above, while the Board’s award of medical expenses to the union business agent may raise eyebrows, it is not without precedent. It is, however, a potential red flag to employers. Because of the NLRB’s expansive view of remedies, it is possible that we may see  a rise in allegations by employee-charging parties of physical or emotional harm in Board unfair labor practice charges. This could result in awards of medical expenses not being rare at all.

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Author: Howard Bloom

Many employers maintain rules in their employee handbooks and/or personnel policies governing how investigations of possible employee misconduct will be handled. Such rules often include admonishments to employees about maintaining the confidentiality of the investigation and, therefore, they implicate Section 7 of the NLRA and protected concerted activity. Indeed, in Banner Health, 358 NLRB No. 93 (2012), the NLRB held that a blanket rule prohibiting employee discussions of ongoing investigations is invalid because it does not take into account the employer’s burden to demonstrate a particularized need for confidentiality in any given situation. Thus, an employer must “determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, and there [was] a need to prevent a cover up.”

Since Banner Health, employers have struggled to find wording for their investigations rules that passes legal muster while conveying the clear message that confidentiality is a possibility. Fortunately, the NLRB’s Division of Advice has provided some new guidance that helps clarify the situation.

A union filed an unfair labor practice charge at a Regional Office of the Board against an employer, alleging the employer’s investigations rule was unlawful. Following investigation of the charge, the Regional Office asked the NLRB’s Division of Advice for an opinion whether or not to issue a complaint. The Division decided a complaint should be issued alleging the rule was unlawful. The Division also set forth the following wording of a lawful investigations rule:

[Employer] has a compelling interest in protecting the integrity of its investigations. In every investigation, [Employer] has a strong desire to protect witnesses from harassment, intimidation and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up. [Employer] may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If [Employer] reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

Although Division of Advice decisions are not binding on the five-member NLRB, those decisions serve an important function in the processing of unfair labor practice charges. They weigh heavily in regional officials’ decisions to issue unfair labor practice complaints (or dismiss charges) in the absence of a definitive Board decision. Few unfair labor practice charges are referred to the Division for review by Regional Offices, but those Regional Offices are well aware of the Advice Memoranda issued by the Division. Therefore, an employer that adopts the rule set forth above, deemed lawful by the Division, is much less likely to face a complaint from a Regional Office.

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Author:  Tom Walsh

One of the first things a newly-unionized employer learns about collective bargaining is that the NLRB gives the union broad rights to demand (and receive) sensitive and even confidential information regarding the company’s business.  Disclosure is required if the requested information is relevant to performance of the union’s responsibilities as the employees’ bargaining representative – even if that relevance is only “probable” or “potential.”

Petaluma Valley Hospital, NLRB Case 20–CA–88742 (March 26, 2013), offers a recent example how this happens to a health care employer.  The union informed the hospital it would call a one day strike 12 days hence (advance warning of a strike is required only in the health care industry).  A one day strike is a common tactic for a health care union – striking members lose only a day’s pay, but the hospital either must succumb to union bargaining demands or find replacement staff to meet patient care needs.  Replacements, however, often are available from a temporary agency only for a minimum of several days – in this case, apparently, five days.  Thus, the hospital told the union it could not permit the strikers to return to work for five days once they struck.  (The engagement of temporary replacements represents a cost, but it can also serve as an employer’s counterbalance to the one-day walkout  – employees who may be willing to forego one day’s pay may not want to lose five.)

The union demanded, among other things,  a copy of the hospital’s temporary staffing contract, as well as any notes or correspondence regarding its negotiation by the hospital.  The union claimed the information was needed in order to “evaluate” the employer’s statement that it had to guarantee the temporary agency five days of work.  The hospital objected on several grounds, claiming (not surprisingly) that the union sought “confidential and proprietary business and/or financial information” and that the staffing contract was not relevant to the union because it did not relate to the terms and conditions of employment of unit employees.

The Board's administrative law judge found that the union’s request for the contract was relevant and necessary to its representation of employees because it was entitled to verify the employer’s representations – was there really a five day minimum in the contract?  Moreover, the request for details concerning the hospital’s negotiation of the staffing contract was relevant to determining whether the five day minimum actually was a condition precedent imposed by the staffing company (or a strategic ploy by the employer).

The judge gave other reasons for his decision, as well, but the takeaway here is that Board law tilts decidedly toward mandating the disclosure of information an employer would naturally view as private.  The ALJ gave short shrift to the hospital’s protestations that the information was “confidential and proprietary,” calling them merely “bare assertions.”  The employer, said the judge, made no effort to “narrow the scope of the Union's request for information; nor did it discuss its confidentiality concerns, or possible methods of alleviating them.” While an appeal to the Board and a different result are possible, the judge's rationale is not inconsistent with recent NLRB decision-making.

An employer entering into collective bargaining should recognize that unions often use information requests for strategic reasons: to obtain sensitive information or merely to burden the company with time consuming demands.  Refusals to respond can result in unfair labor practice charges being brought against the company. 

An employer needs to prepare to deal with a union’s information requests, and perhaps even serve its own demands for information on the union.  The information request stratagem is often not foreseen by employers.  It is one of the reasons an employer should have a comprehensive plan for dealing with union negotiations – one that is not limited to conduct at the bargaining table alone.  

JACKSON LEWIS has presented many programs across the country and on-line to assist employers facing new and difficult collective bargaining negotiations, emphasizing ways they can advance management interests.   Check our website to learn of programs, including webinars, that may help you in meeting these challenges successfully.

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Author: Tom Walsh

As we previously reported in this Blog, one of the more expansionist – and controversial – NLRB decisions of 2012 was D.R. Horton, 357 NLRB No. 184, in which the Board held that employers may not require as a condition of employment that employees agree to a blanket waiver of rights to pursue their employment claims by means of class actions. The Board permitted waiver of class and collective actions in employment arbitrations only where the employer permitted employees to bring these actions in court.

Needless to say, D.R. Horton is of great concern to the employers and has caused a wave of litigation. Leading the charge is D.R. Horton’s own challenge to the Board’s decision in the 5th Circuit Court of Appeals (New Orleans). D.R. Horton, Inc. v. NLRB, No. 12-60031. Oral argument was heard in February. The employer contended (among other things) that the NLRB decision was inconsistent with federal law and Supreme Court precedent. Further, D.R. Horton argued that in the 13 months since the Board’s decision was rendered, no less than 26 different courts expressly rejected the Board’s reasoning.

According to D.R. Horton, six more courts have rejected the Board’s decision in the month since argument was heard. These courts include a state court and two federal courts in California, two federal courts in New York, and one in Tennessee. 

Adding to D.R. Horton’s case against the Board is the D.C. Circuit’s decision in Noel Canning v. NLRB, 2013 WL276024 (D.C. Cir. Jan. 25, 2013). The D.C. Court found President Barack Obama’s recess appointments to the Board to be unconstitutional, indicating its actions depend upon the presence of those appointees, including the decision in D.R. Horton, to be ineffective. D.R. Horton has urged the 5th Circuit to adopt the Noel Canning rationale and thus find the Board lacked a quorum to even issue the decision in its case.

D.R. Horton’s prohibition of most collective action waivers and the recess appointment/NLRB quorum controversy are often mentioned by commentators as examples of overreaching by the White House and the current Board. Regardless of your views, it makes this case one of extraordinary interest. Keep reading this Blog or sign up for Jackson Lewis e-mail alerts to get the latest news about the 5th Circuit’s eagerly awaited decision and other important labor law developments.

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Author: Chad Richter

The National Labor Relations Board’s Office of the General Counsel has released its annual “Summary of Operations (Fiscal Year 2012).”   According to the Summary, the General Counsel’s office exceeded some of its goals and did not meet others. Here are several notable statistics from the Summary:

• Initial union representation elections (elections to determine whether a union will represent the employees of a particular employer) were conducted in a median of 38 days from the filing of the petition. This is the same rate achieved in FY 2011. (This figure could decrease if the Board prevails in litigation over its “quickie election” rule and is able to implement the rule during 2013.)
• Petitions filed in certification and decertification cases decreased 5.7%, from 2,634 in FY 2011 to 2,484 in FY 2012. (In general, certification cases involve elections where the union is attempting to win the right to represent the employees of an employer; decertification cases involve elections where the employees vote whether to remove a union that already represents them.)
• Initial representation elections filed in FY 2012 totaled 1,611, up from 1,423 FY 2011. Of those elections, 90% took place pursuant to the agreement of the parties (stipulated elections), rather than after litigation over unit-related issues.
• Unfair labor practice charges (charges alleging that an employer or a union violated the National Labor Relations Act) filed in FY 2012 numbered 21,629, down 2.5% from 22,175 in FY 2011. This is significant given the NLRB’s push to inform the public about the NLRA’s coverage of protected concerted activity with the expectation that additional unfair labor practice charges would be filed alleging violations of the NLRA on that basis.
• Ninety-one percent of meritorious unfair labor practice cases (those cases where the Regional Office authorized a complaint in connection with an unfair labor practice charge) were settled in the Regional Offices.
• Where meritorious unfair labor practice cases were tried, Regional Offices won 90.1% of Board and Administrative Law Judge unfair labor practice and compliance decisions, in whole or in part.
• A total of $44,316,059 was recovered on behalf of employees as back pay or reimbursement of fees, dues and fines. This is down substantially from $60,514,922 in FY 2011.
• Reinstatement was offered to 1,241 former employees in FY 2012, compared to 1,644 in 2011.
• Of the 73 Board decisions reviewed by a U.S. Court of Appeals, 94.5% were enforced or affirmed in whole or in part. Regional Offices filed Section 10(j) petitions to enjoin alleged illegal conduct in federal district court in 37 cases, compared to 45 petitions filed in FY 2011. (This includes Section 10(j) actions against both employers and unions.) The Summary highlights that the Agency achieved either a satisfactory settlement or substantial victory in connection with 97% of the Section 10(j) petitions filed. 

The Summary desribess the responsibility and overall performance in each of the eight divisions of the Office of the General Counsel including: (1) the Division of Operations-Management and Regional Offices; (2) Division of Advice; (3) Division of Enforcement Litigation; (4) The Division of Administration; (5) Office of Equal Employment Opportunity; (6) Office of Chief Financial Officer; (7) Office of Human Resources; and (8) Office of Employee Development.  

The Office of General Counsel will continue its aggressive enforcement in 2013, according to most observers.

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Author: Howard Bloom

The National Labor Relations Board has overruled long-standing precedent and decided it would no longer automatically find exempt from disclosure to a union a written statement by an employee-witness. Instead, the NLRB in Piedmont Gardens, 359 NLRB No. 46 (12/15/12), decided it will apply a balancing test to determine whether such statements should be produced. The NLRB will balance the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” This is another decision made just prior to the end of Member Brian Hayes’ term on the Board.

The decision will be applied prospectively and not to any case where the employer’s refusal to provide requested witness statements occurred before the date of the Piedmont Gardens decision. 

Piedmont Gardens comes on the heels of the NLRB’s decision in another case involving witness statements, Hawaii Tribune Herald, issued the day before Piedmont Gardens, on December 14, 2012 and discussed in our article Witness Statements May Not Be Protected from Disclosure to Union, NLRB Says. In that case, the NLRB decided that, for a document to be considered a witness statement at all, the employee-witness must have been given an assurance of confidentiality and must have adopted the statement as his own. It appears the NLRB will now use its Piedmont Gardens balancing test when determining whether a statement by a witness is exempt from disclosure to a union instead of the analysis contained in the Hawaii Tribune Herald decision. However, even if the NLRB decides that the balancing test works in favor of disclosure, a witness statement still may be exempt from disclosure as attorney work product. 

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Author: Howard Bloom

A recent Memorandum from the National Labor Relations Board’s General Counsel's Office Division of Advice may cause employers to consider including a National Labor Relations Act-related disclaimer in their employee handbook or human resources policies.  

In Cox Communications, 17-CA-087612 (2012), the employer’s social media policy contained three provisions, the legality of which had been challenged by an employee who had been terminated for violating the policy. The employee filed an unfair labor practice charge against the employer alleging the policy was unlawful under the NLRA and, therefore, his termination for violating the policy also was unlawful. Following investigation of the charge, the Board's Regional office asked the Division of Advice for an opinion on whether to issue a complaint.

The Division decided the questionable provisions did not violate the NLRA because they would not “reasonably tend to chill employees in the exercise of their Section 7 rights.” More notably, however, the Division also discussed the inclusion of the following disclaimer (which it called a “savings clause”) in the policy:

Nothing in Cox’s social media policy is designed to interfere with, restrain, or prevent employee communications regarding wages, hours, or other terms and conditions of employment. Cox Employees have the right to engage in or refrain from such activities.

Regarding the effect of the disclaimer on the legality of the three questionable provisions, the Division of Advice noted:

[The] . . . savings clause . . . further ensures that employees would not reasonably interpret any potentially ambiguous provision in a way that would restrict Section 7 activity.

This appears to be the first time an NLRA disclaimer has been given any weight in an agency determination about a social media or other employer policy. The Division has reviewed at least one other, less-specific disclaimer (i.e., the policy “will be administered in compliance with applicable laws and regulations . . . including the National Labor Relations Act”) and decided it was ineffective to cure ambiguities in an employer rule. Unlike that disclaimer, however, the Cox provision specifically described a key element of Section 7 rights – the right of employees to communicate about “wages, hours, or other terms and conditions of employment.”

Although it is clear the Division would have decided the policy in  Cox was lawful in any event, the disclaimer adds a distinctive note to its approval. For that reason, employers should consider including similarly specific language in particular policies that may raise legal concern under the NLRA. (Since the disclaimer was included in a specific policy, it remains an open question whether the Division of Advice would comment favorably on a similar disclaimer that is   included only at the beginning or end of a handbook.) However, the inclusion of this disclaimer is not a substitute for a thorough legal review of employer policies and rules for NLRA compliance.

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Author: Howard Bloom

In a flurry of activity coinciding with the end of the term of National Labor Relations Board Member Brian Hayes (whose term ended on December 16), the NLRB has issued significant decisions relating to concerted activity conducted on social media, a newly unionized employer’s ability to discipline employees, and an  employer’s obligation to continue dues deductions after the expiration of a contract, among other issues. (With the departure of Member Hayes, the five-member Board now has three members, all of whom are considered by many to be pro-labor.)

In one significant decision, Hispanics United of Buffalo, the NLRB found the employer had unlawfully terminated five employees because of their Facebook posts and comments about a co-worker. The NLRB decided that the Facebook posts and comments were “concerted activity” that was protected by the National Labor Relations Act.

In another case, Alan Ritchey, Inc., the NLRB issued a decision that is of particular importance to newly unionized employers. In that case, the NLRB decided that, where a collectively bargained grievance and arbitration system does not exist, as is usually the case where an employer and a union are bargaining a first contract, an employer generally may not unilaterally exercise discretion in imposing significant discipline (i.e., suspension and termination). Instead, the employer must give the union notice and an opportunity to bargain before imposing such discipline on an employee

In Hawaii Tribune Herald, the NLRB decided that, absent an assurance of confidentiality to the employee from the employer, a witness statement is not exempt from disclosure to the union. The NLRB further decided that the statement was not protected by the attorney work-product privilege, which applies only to documents “specifically created in anticipation of foreseeable litigation.”

In WKYC-TV, Gannet Co., the Board overruled NLRB law (in existence since 1962) and decided that an employer’s obligation under a collective bargaining agreement to deduct dues from an employee’s pay continues even after the expiration of the agreement.

More extensive discussions of these important decisions will follow. In the meantime, please feel free to contact the attorney with whom you regularly work.

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AUTHOR: Howard Bloom

Can a sign saying simply, “No Solicitation,” posted on a store window, be found lawful although on its face it could be viewed as unduly restricting employees’ protected union activity? An Advice Memorandum of the National Labor Relations Board’s General Counsel’s Division of Advice indicates the answer is “sometimes,” but a careful reading of the opinion also suggests a strong admonition for most retailers against embracing this shorthand prohibition too quickly.

In general, the National Labor Relations Act permits an employer to maintain a rule prohibiting solicitation by employees during their work time, but not during non-work time. (Retailers also may prohibit solicitation in selling areas during both work and non-work time and health care employers may prohibit solicitation in patient care and treatment areas during both work and non-work time, as well.) A rule containing a blanket prohibition against solicitation (e.g., “no solicitation”) generally is unlawful because it could be interpreted by employees to prohibit employee solicitation during the employees’ non-work time. A rule prohibiting all non-employee solicitation on the premises, however, is lawful.

In the case discussed in the Memorandum, the employer owned a number of retail stores throughout the country. A two-word “no solicitation” sign on the door or window at or near the main entrances used by both customers and employees were posted at several of the stores. The signs faced outward, and at one of the stores, the signs were adjacent to the store’s business hours sign. Although the stores also had rear entrance doors, the signs were not posted on those doors, which were the primary entrance/exit for employees. Significantly, the employer also had a lawful and more detailed employee solicitation rule in its employee Code of Conduct that it provided to every employee. That rule was also posted on the employer’s intranet site.
 
 A union filed an unfair labor practice charge at a Regional office of the Board against the employer, alleging that the no-solicitation signs were unlawful because they stated an overbroad employee no solicitation rule. Following investigation of the charge, the Regional office asked the Division of Advice for an opinion whether or not to issue a complaint.

The Division of Advice viewed the issue presented as whether employees would believe the signs were applicable to them, rather than to the public at large. If they did, the signs would be unlawful because the rule on the sign was overly broad insofar as employees are concerned, even though the employer also maintained a lawful employee no-solicitation policy in its employee Code of Conduct.

The Division of Advice decided that employees would believe the signs were applicable to the general public, and not to employees. It relied on the following factors:

• The signs faced outward.
• The signs were located at the storefront doors or windows, a location customarily used to communicate with the general public.
• The signs were positioned adjacent to information clearly aimed at the general public (the store’s business hours).
• The employer’s Code of Conduct was widely distributed and contained a lawful no-solicitation rule specifically applicable to employees.
• The no-solicitation signs contained no additional language that might have led employees to reasonably believe that the signs applied to them.
• The signs had not been posted in response to a union organizing campaign.
• No employees had been disciplined for soliciting in violation of the rule posted on the sign.

For most employers, this Memorandum should not serve as license to use an abbreviated no-solicitation sign. They are better served by taking a more risk-averse approach. An employer should:

• Ensure that your employee no-solicitation rule is lawful, properly worded, and widely distributed to employees.
• Ensure the signs do not contain any wording that would lead employees to reasonably believe that the signs apply to them. (In fact, it is best that the signs specifically contain the words “non-employees” to make clear that the signs are applicable only to non-employees.) 
• Train supervisors about the differences between the solicitation rule contained in the employee handbook/policies and the posted rule so supervisors do not discipline employees for violating the posted rule rather than the handbook rule. 
• Ensure that, where the signs are posted on or near doors, they are posted only on doors that are meant primarily or exclusively for customer ingress and egress. They should not be posted on doors that are primarily or exclusively for employee ingress and egress. 
• To the extent possible, the sign should be posted next to other information that is clearly directed to customers (i.e., store business hours).

It is acceptable for these “no-solicitation” signs to be posted in locations other than on entrance and exit doors to the store or building. For example, in some cases, the signs may be posted near the entrance to a parking lot. However, the same standards apply and the signs should not contain wording that may lead employees to reasonably believe that the signs apply to them. Employers also should consider posting the signs only near customer parking areas, not near employee parking areas.

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With his re-election, President Obama and the federal agencies responsible for enforcing the nation’s workplace laws likely will continue to pursue a number of pro-employee initiatives.  Read Workplace Law Implications of 2012 Presidential Election to see what may be in store.  During President Obama’s first term, the National Labor Relations Board’s decisions and rulemaking have favored organized labor.  We expect this trend to continue.

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Attorneys from the Labor Practice of Jackson Lewis LLP will discuss the significant labor relations implications of the 2012 election on the labor landscape in a one-hour webinar available beginning November 20 at www.jacksonlewis.com.  The webinar is free of charge, no registration is required.  Jackson Lewis e-subscribers will receive a special alert on the webinar.

Jackson Lewis attorneys will discuss and suggest steps for employer consideration on the following questions:

• Based on the results, is new legislation likely?  
• Will there be additional Presidential Executive Orders?   
• What will be the composition of the NLRB for the next four years – and what impact will it have on your organization?  
• What about the Department of Labor?  
• What will happen to the NLRB’s rulemaking initiatives such as those on notice posting and accelerated elections?  
• Will the NLRB’s focus on protected concerted activity mean changes to employers’ policies on social media, class action waivers, confidentiality of investigations and other workplace programs?  
• What about “Obamacare”?  
• What should employers consider as possible post-election priorities? 
   

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A hearing before a panel of federal appeals court judges is the latest development on the issue of whether the National Labor Relations Board has authority to require all employers covered by the National Labor Relations Act to post a notice informing employees of their right to organize, providing contact information for the NLRB, and describing basic enforcement procedures.  The D.C. Circuit panel on September 11, 2012, heard business groups argue that the NLRB exceeded its authority by issuing a final rule on “Notification of Employee Rights under the National Labor Relations Act” on August 25, 2011. National Association of Manufacturers v. NLRB, No. 12-5068.

Read the rest of the article here.

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In a case involving a health care employer, the NLRB has decided that employees' rights to engage in protected concerted activity outweighed an employer's interest in safeguarding internal investigations.  Read about Banner Health Sys. d/b/a Banner Estrella Med. Ctr. on the Healthcare Workplace Update Blog.

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Co-authored by Phil Rosen

In a unanimous decision, the Alaska high court has recognized a union-relations privilege for certain discussions between a union representative and a state employee. Peterson v. State of Alaska, No. S-14233 (Alaska July 20, 2012).  “Based on the strong interest in confidential union-related communications and the statutory protection against unfair labor practices, we hold PERA [the Alaska Public Employment Relations Act] impliedly provides the State’s union employees a union-relations privilege,” the Court said. 

Private-sector employers should take heed.  The policies behind the Alaska statute and the National Labor Relations Act are nearly identical.  Unions representing both public- and private-sector workers likely will seek to assert this privilege in other courts or agencies.

The privilege recognized in Peterson extends to communications made:

(1) in confidence;
(2) in connection with representative services relating to anticipated or ongoing disciplinary or grievance proceedings;
(3) between an employee (or the employee’s attorney) and union representatives; and
(4) by union representatives acting in official representative capacity.

Moreover, the privilege may be asserted by the employee or by the union on behalf of the employee. Finally, the Court instructed, “Like the attorney-client privilege, the union-relations privilege extends only to communications, not to underlying facts.”

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