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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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: 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

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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The NLRB Acting General Counsel Lafe E. Solomon has issued a Memorandum (OM 11-74) to Board regional officials, dated August 18, 2011, describing his Office's actions involving social media cases in the past year. Solomon explains: "Recent developments in the Office of the General Counsel have presented emerging issues concerning the protected and/or concerted nature of employees’ Facebook and Twitter postings, the coercive impact of a union’s Facebook and YouTube postings, and the lawfulness of employers’ social media policies and rules. This report discusses these cases, as well as a recent case involving an employer’s policy restricting employee contacts with the media." The full report is available from the NLRB's website here.

Board social media cases generally involve claims of protected concerted activity by employees under Section 7 of the NLRA. Since these cases often turn on the unique facts presented to the Agency, consultation with labor counsel is recommended for employers facing NLRB charges involving employees' use of Facebook, Twitter and other such media. However, the Acting General Counsel's Memorandum offers useful insights into the Board prosecutor's approach to these kinds of cases in the circumstances described.

If you have any questions about the Memorandum or the NLRA, please contact Richard Greenberg.
 

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The National Labor Relations Board’s prosecutor, its General Counsel, continues to show an avid interest in social media as a medium for complaints against employers.  (The Board itself is an active participant in social media, with a Facebook page, a YouTube channel and a Twitter feed.)

On April 12, 2011, the NLRB General Counsel instructed the agency’s Regional Directors that prior to issuing administrative complaints, they should submit to his office’s Division on Advice all cases “involving employer rules prohibiting, or discipline of employees for engaging in, protected concerted activity using social media, such as Facebook or Twitter,” among other issues. (The General Counsel’s Memorandum is available at http://mynlrb.nlrb.gov/link/document.aspx/09031d458047021e.)  The GC expects that this action will help him in the development of a consistent national policy.

The directive comes in the wake of some well-publicized agency complaints over asserted protected concerted activity on Facebook and Twitter.  In October 2010, the GC filed a complaint accusing a company of firing an employee for criticizing her boss on Facebook.  The case was settled and the company agreed to (1) revise its Internet policy to allow employees to discuss wages, hours and working conditions with co-workers outside of the workplace, and (2) refrain from disciplining or firing employees for engaging in those discussions.

More recently, the GC targeted another social media tool – Twitter.  The GC reportedly had warned a company that it may have reprimanded an employee illegally over her criticism of company management in a Twitter post, in violation of the employee’s right to discuss working conditions with other employees. The matter was resolved when the union and company — which had been negotiating a new contract — reached a tentative contract, including negotiating a new social media policy that would include language that will protect employees’ speech and the right to engage in other concerted activity about working conditions. 

The GC again focused on Facebook after issuing his directive.  On April 27, 2011, the NLRB Regional Director in San Francisco reported the approval of a settlement after a company fired an employee allegedly for posting comments about the company and possible state labor code violations on Facebook.  As part of the settlement, the company agreed to post a notice at the workplace for 60 days stating that employees have the right to comment about terms and conditions of employment on their social media pages and that they will not be terminated or otherwise punished for such right. 

Employers should exercise care from a labor-relations perspective in handling social media issues and treat recent Board scrutiny in these cases as an invitation to revisit their own social media policies.

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Under its current arbitration deferral policy, the National Labor Relations Board, to encourage collectively bargained dispute resolution, would defer a final determination in certain unfair labor practice (“ULP”) charges when the grievance can be processed through the parties’ grievance or arbitration provisions under their collective bargaining agreement (“CBA”).  The Board’s Acting General Counsel has urged the Board to change its arbitration deferral policy, claiming it is “overly deferential” and not sufficient to protect employees’ organizing and collective bargaining rights under Section 7 of the National Labor Relations Act.
 
In his January 20th memo (GC 11-05), Acting General Counsel Lafe E. Solomon would require employers (as the presumed proponents of deferral to an award) to show the CBA had the Section 7 statutory rights incorporated in it or that the parties submitted the statutory issue to the arbitrator AND the arbitrator correctly enunciated the applicable statutory principles and applied them in deciding the issues.

If the employer clears those hurdles, it will still have to show it is not “clearly repugnant” to the NLRA, i.e., the result is not palpably wrong or susceptible to an interpretation inconsistent with the Act.
 
Solomon’s new principle also would be implicated in NLRB approvals of pre-arbitration grievance settlements in certain ULP cases (the parties must have intended to settle the ULP charge as well as the contractual grievance).  The NLRB regional offices are directed to investigate the ULP charge, at least to the extent of taking affidavits from the charging party (“CP”) and the CP’s witnesses, and to determine whether the charge has “arguable merit” before deferring to an arbitrator.  When the award is issued, and a party urges deferral to it, the Regional Office is to examine whether the proponent has satisfied the three new criteria, make its determination, and submit the case to the agency’s Division of Advice.

Of course, if the arbitrator upholds the grievance, directs reinstatement and full back pay, and the CP requests withdrawal of the charge, the request can be approved.  If the CP refuses to withdraw, the case still will go to the agency’s Division of Advice.

Now that the NLRB regional offices will dissect arbitration awards regularly, will the unions be filing ULP charges with every discharge grievance?

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The National Labor Relations Board’s union-boosting has taken a new and troubling turn…repudiating the will of voters who would make unions show by secret ballot that they really represent employees.

The NLRB has threatened four states, whose voters passed initiatives last year barring employers from recognizing unions except following a secret ballot election, with lawsuits claiming the state measure are preempted by the National Labor Relations Act.  The Board’s Acting General Counsel, Lafe E. Solomon, on behalf of the agency, on January 13 notified the attorneys general of Arizona, South Carolina, South Dakota, and Utah that the measures would run afoul of the federal statute’s preemptive authority in the field of labor relations.  Solomon opined, “By closing off an alternative route to union representation authorized and protected by the NLRA, [the amendments create] an actual conflict with private sector employees’ Section 7 [NLRA] right to representatives of their own choosing.”  Expressing concern that employers, under pressure from state law, might refuse to recognize — or withdraw recognition from — unions “lacking an election victory,” or that represented employees might bring actions under the new requirements against such unions and their employers asserting violations of state constitutional rights, Solomon asked the attorneys general to consent to a judicially approved stipulation that the measures are unconstitutional.  He has given the states two weeks to respond.  After that, he said, he will file suit.

This latest step by the pro-union agency is both unsurprising and unsettling.  The state ballot measures were intended to head off the “card-check” provisions of the Employee Free Choice Act (EFCA).  Little wonder, then, that this Board, seemingly with the goal of achieving the unfulfilled “promise” of EFCA, should attack these initiatives head on.  Unions would have to earn representation by secret ballot.  Goodness! How could employees ever be expected to vote for a union after their employer weighed in on the issues?

So much for faith in democracy.

The Board views its mission as one to revive and expand unionism. From its members’ perspective (most of them, anyway) no straight-thinking employee ever could oppose unionization.  And so, it proposes to sweep away “obstacles” to representation that most citizens agree are necessary to assure employee free choice. 

The Board is mistaken.  Its proper role is to act as a referee, not a booster — to allow employees to choose union representation, or not to choose it, as they see fit, under conditions that foster free expression of an informed choice.  Allowing workers to cast a secret ballot in government-supervised election is the best way to do that.

Are we too harsh?  Double standards aren’t pretty.  When states limit union organizing the Board attacks them, but when a state restricts employers from communicating with employees about unions, the NLRB is missing, even though federal preemption concerns are at least as worrisome.   Consider a 2009 Oregon law.  It prohibits employers from taking action against employees who refuse to attend employer-called meetings on unionization or other issues, and even allows employees to get court injunctions against so-called “captive-audience” meetings.  The law plainly addressed a subject covered by the federal law.  The Chamber of Commerce and others brought suit challenging the law on grounds that it was preempted by the NLRA.  But the NLRB was not among them.  True, a federal judge turned back the challenge on grounds the suit was not yet ripe – no one had been forced to attend a meeting, he said. But Mr. Solomon doesn’t see that as a problem for the Board’s own planned lawsuits. “[W]here a danger exists that public knowledge of the provision may result in ‘self-censorship; a harm that can be realized without an actual prosecution,’” the Board can act, he says.  So why didn’t the Board show up in Oregon?  Because it wasn’t politically correct.  This Board’s constituents saw it as “union busting” instead of “union boosting.”  The Board has no qualms, however, over forcing states to spend sorely needed revenue on litigating secret ballot measures that vindicate employees’ rights.  This is unsettling, indeed.
 
If there is any comfort to be gleaned from this, perhaps it is the knowledge that time is short. By the end of 2011, the Chairman’s term on the Board will have expired.  So will that of one of her like-minded colleagues.  EFCA legislation is foreclosed for now by a Republican-controlled House of Representatives. 

The Board surely has one eye on the calendar.  If it is to move its pro-labor agenda, it must act quickly. The threat to state attorneys general is not the last of these actions.  Expect more. Very soon.
 

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