New NLRB Determination Makes It Easier For Unions To Organize Faculty At Universities And Colleges

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

In still another break with long-standing precedent, the National Labor Relations Board (NLRB) has once again eased the way for union organizing – this time for unions seeking to organize faculty at private sector universities and colleges. In Pacific Lutheran University, 361 NLRB No. 157 (December 2014), the Board adopted a new standard for determining when faculty may be considered to be "managerial employees," which in turn critically impacts whether they may be subject to unionization.

The seminal case in this controversial area of federal labor law is NLRB v. Yeshiva University, 444 U.S. 672 (1980), where the United States Supreme Court found that the faculty at Yeshiva were managerial employees and therefore excluded from coverage under the National Labor Relations Act (NLRA or Act). The Court found that the Yeshiva faculty "formulate and effectuate management policies by expressing and making operative the decisions of their employer." They had effective power to control or implement employer policies, such as deciding what courses would be offered, when they would be scheduled, to whom they would be taught, and determining teaching methods, grading policies, matriculation standards, which students would be admitted, retained, and graduated, etc.

In the years since 1980, the Board has struggled (at least according to some of the reviewing Courts of Appeal) with applying the Yeshiva standard. But more often than not the Board applied Yeshiva to determine that faculty, particularly tenured faculty, were closely aligned with the management of their respective institution, resulting in their being excluded from coverage under the Act.

In Pacific Lutheran, however, the Board has chosen to refine or interpret the Yeshiva standard in a manner making it harder to assert or conclude that faculty are managerial. Perhaps unfortunately for those who would have preferred the prior status quo, the facts in Pacific Lutheran easily lent themselves to those Board Members who were looking to expand coverage of the Act to cover previously-excluded faculty. The union had petitioned for a representation election in a unit of all contingent (non-tenure eligible) faculty teaching a minimum of three credits during an academic term, of which there were about 176 in the petitioned-for unit. The University asserted that approximately 40 of the 176 were managerial and therefore excluded from voting in any election that might be scheduled. The NLRB Regional Director concluded otherwise, including the 40 as eligible voters when he directed that an election take place. The University appealed to the Board, where at least 20 organizations filed various amicus briefs.

Unlike the faculty in Yeshiva, the contingent faculty at issue did not appear to exercise the same level of managerial control or implementation. The Board in Pacific Lutheran first laid out a focus upon five areas of policy making to examine whether faculty actually exercise control or make effective recommendations regarding university policies. The five areas to be examined are academic programs, enrollment management, finances, academic policy, and personnel policies/decisions, with an emphasis on the first three being "primary" areas and the latter two being "secondary." Then within each of those policy areas, the Board will seek to determine whether the faculty actually exercise control or make effective recommendations in those areas. If they do, then the Board will find the faculty to be managerial and exclude them from coverage under the NLRA. And the Board emphasized that, to be excluded, the faculty must have "actual--rather than mere paper—authority" and in order for recommendations to be considered effective, they "must almost always be followed by the administration."

Turning to the facts in Pacific Lutheran, the Board found that the faculty at issue were not managerial. According to the Board, the faculty had only limited participation in the three primary and two secondary areas of policy making noted above, noting particularly that they were typically employed on only one-year contacts which inherently limited their ability to control or make effective recommendations regarding university policy. The faculty at issue also had only limited participation in decisions affecting academic programs, were not permitted to serve on faculty standing committees, did not vote on enrollment management policies, had little or no involvement in decisions involving finances, and had limited involvement in both academic policy and personnel matters. In short, it appears that the Board may have seized upon a set of facts which in any event would have fallen short of the Yeshiva standard, in order to erect new barriers for colleges and universities to overcome in future cases where the facts might have been more conducive to finding managerial status under Yeshiva.

This case or future cases utilizing the Pacific Lutheran rationale will likely receive further review and analysis by the federal Courts of Appeal and possibly the Supreme Court. Private sector universities and colleges that wish to see their faculty remain non-unionized should however take heed. Most authorities predict that this case will spur union organizing of faculty, and therefore institutions should be evaluating their vulnerability and taking proactive steps now to lessen the likelihood of having to deal with a unionized faculty.

NLRB Re-Issues "Quickie Election" Rule In Continuous Effort to Boost Union Organizing

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania. 

The National Labor Relations Board (NLRB) is at it again. Unions are already winning close to 70% of NLRB-conducted elections. NLRB elections are already conducted quite promptly, with the median processing time being about 38 days from date of petition filing to date of election. Nevertheless the three Democrat Members of the NLRB have apparently concluded that organized labor needs additional governmental assistance in unionizing the unorganized workforce.

Over the vehement dissent of the two Republican Members, the Board Majority, on December 15, 2014, issued its Final Rule amending election procedures in what most observers are calling the "Quickie Election" Rule. Thankfully the Rule does not actually go into effect until April 14, 2015, as it is 733 pages in length and will therefore require substantial time just to wade through. But the implications of the Rule are starkly clear – effective April 14, elections will be held approximately 10 to 21 days after a union election petition has been filed – with profound consequences for non-union employers.

First, if this all sounds familiar, it should. The Board first issued an almost identical Rule in 2011, but it was invalidated by a federal court because the Board lacked a proper quorum when it had voted to adopt the Rule. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp 2d 18 (D.D.C. 2012).

Undeterred by this setback, the Board proposed virtually the same Rule in February 2014, and has now adopted it, despite an overwhelmingly negative reception by employers and trade associations. The new Rule is every bit as pro-union as the original 2011 Rule, and in some ways is even more stringent in addressing what the Majority determined to be shortcomings and inequities existing under current procedures.

What are some of the major changes promulgated under the new Final Rule? They will be addressed below, but collectively, they will operate to dramatically shorten the period of time from the date the election petition is filed to the date the election is conducted. That time period is particularly critical for employers, because it is often the only time the employer will get to express its views on unionization. An organizing effort may have been ongoing for weeks or months without the employer's knowledge, with the employer only learning about it when it is served with the election petition. A dramatically shortened time period prior to the date of the election necessarily deprives employers of the time needed to fairly present both sides of the representation question to employees.

Among the changes in the Final Rule are the following:

  1. The employer, upon receipt of the petition will have just two business days in which to post a "Notice of Petition for Election" and distribute it electronically to employees. The Notice references various employer conduct which, if committed, would constitute unfair labor practices. Failure to comply with this posting requirement, inadvertent or otherwise, will constitute grounds to set aside the results of the election if the employer wins.
  2. The employer will have seven days from date of service of petition to file with NLRB and serve on the union a "Statement of Position" regarding any issues it plans on raising at the pre-election hearing, and failure to raise an issue in the Statement will preclude the employer from litigating the issue at the pre-election hearing.
  3. Pre-election hearings will be held precisely eight days after the petition is served, but unlike present procedures, there will be no litigation of individual employee eligibility to vote or inclusion in the bargaining unit, with such issues being deferred to the post-election challenge procedure. This provision is particularly onerous to employers, as it is likely to prevent the employer from litigating the supervisory status of individuals, thereby making it more difficult for the employer to know which individuals it can rely on as company representatives during the election campaign.
  4. Under current procedures, post-hearing briefs can be filed seven days after the hearing. Under the Final Rule, such briefs will no longer be entertained, resulting in less time for the Board's Regional Director to consider the issues and less time until the issuance of a Decision and Direction of Election.
  5. Employers will now be required to provide to the Board and to the union expanded personal information about employees, to include not only names and home addresses (per present procedures) but now also home telephone number, personal cell phone number and e-mail address if known by the employer, work location, shift, and job classification. All of this of course is to enhance the union's ability to contact employees for pre-election campaigning purposes.

The above are only some of the changes, with others including eliminating the right to seek pre-election review of a Regional Director's Decision by the Board, eliminating the current 25 day waiting period to conduct elections after the issuance of a Decision and Direction of Election, and expediting of any post-election objections. The bottom line, of course, is that effective April 14, 2015, it will be easier than ever before for unions to unionize the presently unorganized.

What should employers be doing now to prepare for implementation of the Final Rule? Some suggestions below:

  1. Unless you believe you are virtually invulnerable to a union organizing effort, you should not remain idle. If and when an election petition is filed, there may be too little time to do too much.
  2. Consider conducting union avoidance training for managers and supervisors now, before the Final Rule becomes effective.
  3. Honestly consider whether your organization is susceptible to a union organizing effort. If it is, perhaps you should be analyzing potential bargaining unit issues, reviewing company policies (such as solicitation and use of electronic resources), determine who is likely to be considered supervisory and who is not, compose a company response team which can promptly address union organizing efforts, etc.

These are but a few of the proactive steps that all non-union entities should be considering in light of the Board's adoption of its Quickie Election Rule. If you have questions, concerns, or would like further assistance, please contact the undersigned or your usual McNees attorney contact.

The Obama NLRB Strikes Another Blow on Behalf of Organized Labor: Employees May Use Company E-Mail Systems to Unionize and Engage in Other "Protected Concerted Activities"

This post was contributed by Bruce D. Bagley, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Most employers have policies or work rules limiting employee use of Company e-mail systems to "business purposes." Many employers have policies or work rules specifically prohibiting employees from using Company e-mail to solicit for outside organizations (such as soliciting fellow employees to join a union). In Purple Communications, Inc., 361 NLRB No. 126, issued on December 11, 2014, the National Labor Relations Board (NLRB) decided that employees must presumptively be permitted to use their employer's e-mail system, during non-working time, to communicate with each other about workplace issues, including but not limited to union organizing efforts.

In reaching this determination, the three Democrats on the Board, over the vigorous dissent of the two Republican members, reversed the 2007 NLRB Decision in Register Guard, which had held that employees have no statutory right to use their employer's e-mail system for engaging in union or other activities protected by Section 7 of the NLRA.

The Purple Communications majority premised its decision on what it deemed "the importance of e-mail as a means of workplace communication," noting that "e-mail remains the most pervasive form of communication in the world." According to the majority, "the workplace is 'uniquely appropriate' and 'the natural gathering place' for such communications, and the use of e-mail as a common form of workplace communication has expanded dramatically in recent years." The majority concluded that, if employees are already provided access to their employers' e-mail systems, then they must also be permitted to use these systems, during non-working time, for union organizing purposes and for any other protected communications about terms and conditions of employment.

It is significant to note that the Board's Decision applies to employees, not non-employees, and does not present outside union organizers with the right to use the employer's e-mail system. It does not require employers to now provide e-mail access to employees who do not already have such access. Nor does the decision reach any employer communication system other than e-mail. And while the decision announces a "presumption" that employees have the right to use the e-mail system for protected communications on non-work time, it also states that employers can at least try to assert "special circumstances" that would allow a ban on such use of e-mail if necessary to maintain production or discipline. (Editor's note: good luck trying to establish sufficient "special circumstances" that would satisfy the present Board!).

Notwithstanding Purple Communications, it is still permissible for employers to prohibit employee use of employer e-mail systems for non-work-related activities during working time, including communications regarding union or other Section 7 activities. But that would be the case only if the employer consistently enforces such rule against employee use of e-mail during working time for other non-work-related communications as well (which most employers do not). Put another way, if an employer does not monitor and prohibit content of non-work-related e-mail sent or received during working time, it similarly cannot lawfully prohibit the use of e-mail during working time for union-related or other Section 7 protected communications.

This NLRB case raises significant issues for virtually all employers, unionized and non-unionized. No doubt there will be appeals from the Board's Decision to the federal appellate courts, but for the immediate future at least, Purple Communications is the law of the land. If you have questions or concerns about how this Decision may impact your policies or work force, particularly your policies regarding e-mail and other electronic resources, "Bring Your Own Device," solicitation, social media, handbooks, etc., please feel free to contact the undersigned or your usual attorney contact at McNees Wallace & Nurick.

Board Continues Aggressive Policing of Employee Social Media Use

This post was contributed by Adam L. Santucci, an Attorney in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

Stop me if you heard this one: the National Labor Relations Board recently reinstated employees who were discharged for comments made on their Facebook pages and found that the employer's social media policy was unlawful.

We have covered this topic in detail before (herehere and here for example), and you can check out these posts and others in our Archive for some background information on the Board's aggressive approach to social media issues. In Triple Play Sports Bar and Grille, the Board made clear its position that under the National Labor Relations Act, employees have the right to act together to improve the terms and conditions of their employment and to "improve their lot." The Board went on to state that this includes the right to use social media to communicate with each other and with the public for this purpose.

On the other hand, the Board also noted that online communications can implicate legitimate employer interests, including the right to maintain employee discipline. The Board noted that the competing interests of the employees and the employer must be weighed carefully (yes, you know where this is headed). In this case, not surprisingly, the Board found that the employees' interests outweighed the employer's interests and that the employees' conduct did not lose the protections of the Act despite the use of some pretty offensive language.

Let's take a look at the facts.

Triple Play is a non-union establishment. At some point, the employees learned that they owed state income taxes because their paycheck withholdings were incorrect due to an apparent accounting error. As employees tend to do when they are upset, these employees took to Facebook to vent their frustration. A discussion ensued among employees and customers on Facebook, and the owner of Triple Play was referred to using some pretty colorful and insulting names. In addition, the group used insulting language to refer to Triple Play. There was some dispute regarding who had access to the posts--the entire world or only Facebook friends--but the discussion came to the attention of the owners of Triple Play the day after it was posted.

When the employees returned to work, one was immediately fired. Another was questioned about the posts, and admitted that when he "Liked" the posts made by other employees, he was expressing his support for the content of the posts. This employee was promptly fired as well.

The Board found that the employees' discussion of the calculation of tax withholdings, the complaints they intended to raise at an upcoming meeting about the issue, and possible complaints to the Department of Labor, constituted concerted protected activity under the Act. The employer argued that the employees' comments lost the protection of the Act because the comments were defamatory and disparaging and because they were made in a public forum. I really like that last argument. To me, the world wide audience on the web really changes the dynamics of these situations and it cannot seriously be argued that such discussions are analogous to discussions around a water cooler.

The Board did say that given the public nature of the posts, which were made offsite and outside of working hours, the standard Atlantic Steel test used to determine whether comments were so outrageous as to lose protection of the Act, was not appropriate. Instead, the Board found that the Wright Line test was the appropriate test. The Wright Line test examines whether comments made by employees are so disloyal or defamatory as to lose the protection of the Act. This test balances the employees' rights under the Act against the employer's interests in preventing the disparagement of its products and services and its interest in protecting its reputation.

In its evaluation of the Wright Line test, the Board found that the comments related to an ongoing "labor dispute" and were not directed toward the general public, because the comments were posted on a personal Facebook page. A personal page, it should be noted, that could have a worldwide audience, a fact apparently lost on the Board. The Board likened the conversation to one that could be overheard at the bar or in a workplace. This is an analogy that I wholeheartedly disagree with; see my comments above.

The Board ultimately concluded that under the Wright Line test, the employees' comments were not so defamatory or so disloyal as to lose the protection of the Act. The Board, therefore, ordered that the employees be reinstated. The Board also held that the employer's Internet/Blogging policy violated the Act. The Board concluded that a reasonable employee could construe the policy's prohibition on "inappropriate discussions about the company, management and/or coworkers" as a restriction on their rights under the Act. The Board found this rule was overly broad and could chill the exercise of employee rights under the Act.

For those of you following the Board and/or our Blog, the result here does not surprise you. The employer lost on all fronts. It is interesting that the Board spent some time talking about the public nature of the Facebook posts though. Given that the Board found that the employee comments were not so disloyal or defamatory as to lose the protections of the Act, this discussion by the Board was essentially irrelevant. However, it leads us to believe that the Board may have been outlining a new framework for addressing how it will be evaluating social media activity; and specifically, how the Board may distinguish between private, semi-private, and public posts when considering these issues in the future. Hopefully, employers who find themselves before the Board in the future will make a detailed record outlining the extremely public nature of everything posted to the internet.

U.S. Supreme Court Issues Long-Awaited Decision in NLRB v. Noel Canning; President Obama's Recess Appointments to NLRB Deemed Unconstitutional

This post was contributed by Bruce D. Bagley, a Member in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

On June 26, 2014, the United States Supreme Court unanimously found that President Obama acted unconstitutionally when he made several recess appointments to the National Labor Relations Board ("NLRB") in 2012. The Court, in an Opinion authored by Justice Breyer, affirmed (albeit for differing reasons) the January 2013 judgment by the U.S. Court of Appeals for the District of Columbia Circuit. (Similar rulings holding the appointments to be unconstitutional had been made by the Fourth Circuit Court of Appeals and our own Third Circuit Court of Appeals.)

As we have reported previously, on January 4, 2012 the President appointed three individuals to be Board Members. He had previously been unable to procure sufficient support for his appointments from the United States Senate, which under the U.S. Constitution, must confirm such presidential appointments. The President thereafter made the appointments anyway, claiming that the Senate was in "recess" for its 2011-2012 winter holiday break, and that he had authority under the Constitution's Recess Appointments Clause to make such appointments at that time. The Senate, however, did not consider itself to be in recess, as it had agreed to reconvene every three business days during the period from December 20, 2011 through January 23, 2012.

The Court split 5-4 on the rationale for confirming the Court of Appeals' judgment. Justice Scalia and the three more conservative Justices would have more broadly limited the president's recess appointment powers. Justice Breyer and the four more liberal Justices concluded that the Recess Appointments Clause does empower the president to fill vacancies during a recess of sufficient length, which Breyer opined should be a hiatus of at least 10 days. But here the Senate had been on only a three day break, according to Breyer, because it was meeting every three business days. All nine Justices agreed that a three day break in business was not of sufficient length to constitute an actual recess which would allow the President to make these unilateral appointments.

Turning more specifically to the Board's findings in the case at issue, the Company's argument in Noel Canning was simple and direct. It argued that the Board's finding it had committed unfair labor practices must be overruled because the Board lacked a proper quorum, due to the fact that three of the Board's five Members had been unlawfully appointed. The Supreme Court readily agreed with the Company's position. And by doing so, the Court has implicitly invalidated literally hundreds of NLRB Decisions issued from January 4, 2012 to July 30, 2013, the date on which new Members were finally and lawfully confirmed by the Senate during its regular session.

Many of the Board's Decisions issued during that January 2012 to July 2013 time period were quite significant. In Costco Wholesale Corp., 358 NLRB No. 106 (2012), the Board had invalidated a policy prohibiting employees from making defamatory statements about the company. In Banner Health System, 358 NLRB No. 93 (2012), the Board had found unlawful a blanket policy prohibiting employees from discussing ongoing investigations of misconduct with other employees. In D.R. Horton, 357 NLRB No. 184 (2012), the Board had concluded it was unlawful for employers to require employees to arbitrate claims rather than file civil actions. In WKYC-TV, Gannet Co., 359 NLRB No. 30 (2012), the Board had held it was unlawful to cease deducting union dues from employees' pay checks after expiration of the collective bargaining agreement. All of these cases, and many others, will now be of no precedential value, given the lack of a proper quorum at the Board when the decisions were issued.

Many of you may recall what happened the last time the Supreme Court found that the Board lacked a proper quorum, in New Process Steel v. NLRB, 130 S.Ct. 2635 (2010). It took the Board several years to re-evaluate and reissue determinations on hundreds of cases, just as the Board must presumably do now as a result of Noel Canning. But in what must be of most import for those of us on the management side, the Board is currently at full strength (three Democrats and two Republicans). It is unlikely that the present Board will ultimately deviate from the harshly pro-union precedent established by the Obama-appointed recess Board Members. Long-term, Noel Canning may be remembered much more for its rebuke of President Obama's usurpation of legislative authority than it will be for its impact on principles of substantive labor law.

NLRB Upholds Discharge for Deliberate Betrayal, Despite Reliance on Unlawful Policy

This post was contributed by Adam L. Santucci, an associate in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

The National Labor Relations Board recently issued a somewhat surprising decision that provides useful guidance to employers facing employee misconduct. In Flex Frac Logistics, LLC, the Board found that an employee's discharge for breaching the employer's confidentiality policy was lawful, despite the Board's finding that the confidentiality policy was unlawful.

In a prior decision, the Board found that the confidentiality policy was unlawfully overbroad because it prohibited or could be interpreted to prohibit employees from discussing wages, hours and other terms and conditions of employment. We have previously discussed with you the Board's aggressive enforcement stance with respect to employer policies of all types. As part of that prior decision, the Board remanded to an Administrative Law Judge ("ALJ") the question of whether the employee's termination pursuant to the confidentiality policy was also unlawful.

The ALJ held, and the Board affirmed, that the employer did not violate the National Labor Relations Act when it discharged the employee. Discipline pursuant to an unlawful policy is only unlawful if the employee violated the rule by engaging in protected activity under the Act, or by engaging in conduct that otherwise implicates the concerns underlying the Act. The Board found that even though the employee's conduct implicated the concerns underlying the Act, her discharge was lawful because the employee deliberately betrayed the employer's strong, expressly articulated confidentiality interests.

The Board noted that there was no dispute that the employer had a legitimate business interest in maintaining the confidentiality of the rates it charged its customers, and that the employer was harmed by the employee's disclosure of that information. The Board found that it was clear that the employee was not discharged for engaging in protected activity but was instead discharged for deliberately violating the confidentiality policy. Importantly, the Board noted that the employer cited the employee's interference with its operations as the reason for her discharge.

This decision was surprising to us given the Board's strong defense of employee rights under the Act. But, as was previously discussed, there are some limits to the protections of the Act. The Flex Frac decision has a good discussion of the types of misconduct that will not be protected by the Act, even if the employer relied on an unlawful policy in taking disciplinary action against the employee.

Although helpful, employers should still work to ensure that their policies will withstand scrutiny under the Act, and that any disciplinary actions are carefully vetted for compliance.

NLRB Finds that not all Whining and Complaining Protected by NLRA

Stop me if you have heard this one, an employee was upset about his pay rate…

Seriously, an employee upset about his pay was at the heart of a recent decision issued by the National Labor Relations Board that explored the protections afforded by the National Labor Relations Act ("Act"). The employee in question was hired to perform waterproofing duties on a project at a university in Ohio. The project was a public project, and therefore, it was covered by the applicable prevailing wage laws. The employee, however, was not happy about the prevailing wage rate that he received on the project, and essentially complained about his wage rate throughout the entire time he spent working on the project. In fact, as the foreman testified, the employee complained about basically everything during his brief tenure with the employer.

No Good Deed Goes Unpunished
According to the foreman, the employee "whined" and "complained" throughout the project about nearly everything. The employee apparently constantly voiced his opinion that the company was doing "everything wrong." (You may have heard that one before too!) As it turns out, the employee did receive some pay increases during the term of the project. However, he often told other employees about the wage increases, which led to some discontent and caused at least one long term employee to quit (apparently feeling that he should have also received wage increases even without having to complain). Eventually, the payroll clerk wrote the employee a note on his pay stub that stated, "Please keep your pay to yourself."

Under the Act, employees are permitted to engage in concerted protected activity. This includes discussions regarding terms and conditions of employment, such as wages. Accordingly, the Board quickly concluded that the handwritten statement on the pay stub was a direct restriction on protected activity, and therefore, a violation of the Act.

Some Bad Deeds need not be Forgiven
The employee was laid off at the end of the project, and proceeded to file multiple complaints against the company, including a complaint to the university that the work performed on the project was "shoddy." Before the Board, the employee argued that his termination was retaliation for engaging in protected activity, i.e. complaining about his wages. The company, however, argued that the employee was terminated because the project came to an end and it had no more work for the employee. The Board agreed with the company. The Board concluded that there was no evidence to suggest that the employee's complaints about his pay were the reason for his lay off. The Board noted that the employee had received pay increases after he complained, and that several other employees were laid off at the conclusion of the project.

The employee also argued that the fact that the company failed to rehire him for other projects was in retaliation for his protected activity. The company argued that it would not rehire the employee because of the allegations that he made to the university regarding the quality of the company's work. The Board actually sided with the company on this one, finding that its explanation was credible, and that the statements about the quality of work in this instance were not protected activity.

It seems that employers are regularly finding themselves in hot water with the Board as a result of overly restrictive policies and procedures. Even in situations like the present case, where there were obvious negative consequences following the employee's discussion of his wage rate (another employee quit), the Board will find a violation of the Act. In fact, the Board noted that the motivation for the restriction on the employee's conduct was "irrelevant."

Nonetheless, for some of us it is refreshing to be reminded that there are some limits to the protections of the Act. Indeed, not all "complaining and whining" is protected.

NLRB Rules That College Football Team Can Seek to Form a Union

This post was co-authored by Bruce D. Bagley, a Member in McNees Wallace & Nurick LLC's Labor & Employment Practice Group in Harrisburg, Pennsylvania.

As Americans across the country anxiously stare at their National Collegiate Athletic Association (NCAA) Division I Men's Basketball brackets, the Northwestern University Wildcats are dominating the headlines in both the sports and labor law communities. In what many sports and legal commentators are calling a game-changing decision (pun intended), on Wednesday, March 26, the Regional Director for the Chicago Regional Office of the National Labor Relations Board (NLRB) ruled that certain players on the Northwestern University football team could seek to form a union. Perhaps more importantly, the Decision is quite expansive in its interpretation of the term "employee."

At the center of his Decision, the Regional Director found that scholarship recipients are actually "employees" of the University, as the term "employee" is defined in the National Labor Relations Act (NLRA). According to the Decision, "an employee is a person who performs services for another under a contract of hire, subject to the other’s control or right of control, and in return for payment." The Regional Director reasoned that Northwestern's scholarship football players are employees because they sign a "tender" before each scholarship period, are granted scholarships (payment) in exchange for their services (playing football), are under the strict control of the University's athletic department, and perform valuable services because they generated over $235 million for the school's football program over a ten year period. The Director further argued that these scholarship football players are "paid" over $76,000 per year, in the form of tuition, fees, room, board, and books – and that this scholarship payment is directly tied to their performance "at work" on the football field. Notably, the Director concluded that non-scholarship and "walk-on" players do not meet the definition of "employee," because they receive no compensation for the services they perform.

So what happens next? Northwestern has indicated its intention to file a Request for Review of the Regional Director's Decision with the full NLRB in Washington, D.C. If the Board grants the Request for Review, it will consider further briefings by the parties, and possibly oral argument. If the Regional Director's Decision is upheld, the NLRB's Chicago Office will conduct a secret ballot election in a voting unit consisting of "all football players receiving football grant-in-aid scholarships and not having exhausted playing eligibility" employed by Northwestern University.

If the Northwestern football players do eventually vote to form a union, this will give them the right to collectively bargain with their "employer", Northwestern University. There is no guarantee that they will receive additional payment or benefits at all – they could even conceivably find themselves with fewer benefits depending on the terms of an eventual collective bargaining agreement. And there are a number of potential downsides for the players – if the money they receive in scholarships is "income", the IRS could very well demand that players pay an income tax on the scholarship funds deemed payment for their athletic services. Note that, according to various press accounts, the players do not claim they wish to receive any additional compensation (at this point). As of now, they have indicated their primary concern is securing the coverage of medical expenses for current and former athletes with sports-related injuries.

The Regional Director's Decision directly impacts only Northwestern University, although certainly players at other schools may be pursuing similar actions. Remember that the NLRB does not have jurisdiction over public universities such as Penn State, Ohio State, etc. Such state-related institutions would be under the jurisdiction of state labor relations boards. Remember, too, that the Northwestern Decision is fact-specific, and that other Division I football programs could be treated differently by the NLRB.

As expected, the NCAA and many of the major college sports conferences strongly disagree with the Decision. In a statement released shortly after the Decision was issued, the NCAA stated "We frequently hear from student-athletes, across all sports, that they participate to enhance their overall college experience and for the love of their sport, not to be paid." The NLRB concluded that scholarship football players were not "primarily students" because they spend most of their time participating in athletic endeavors. This is certainly an expansive reading of the statutory term "employee." Only time will tell if the federal appellate courts, including eventually the U.S. Supreme Court, will agree that federal labor law was intended to grant collective bargaining rights to student athletes, albeit ones that receive scholarships and whose college activities may indeed be tightly controlled by their coaches.

No Love for No Gossip Policy

A National Labor Relations Board (NLRB) Administrative Law Judge (ALJ) recently concluded that an employer violated the National Labor Relations Act (Act) by implementing a "no gossip policy" and by firing an employee who violated the policy. The case, Laurus Technical Institute, involved a non-union employer. As we have reported before, the NLRB's jurisdiction covers union and non-union employers alike. We have also talked with you about the NLRB's aggressive approach to policing employer workplace policies. You have been warned!

It appears that in this case, after an employee filed a charge challenging her termination for unsatisfactory work performance and various policy violations, the NLRB's General Counsel's office included an additional charge challenging the employer's "no gossip policy."

The "no gossip policy" was implemented to address a number of workplace problems, problems that you are probably familiar with! The policy provided that gossip would not be tolerated. The policy also prohibited employees from engaging in gossip about the company, other employees or customers and stated that employees who violated the policy would be subject to disciplinary action. The policy defined gossip in a number of different ways, including: "talking about a person's personal life when they are not present; talking about a person's professional life without his/her permission; and creating, sharing or repeating rumors about another person, that are overheard or that constitute hearsay."

The ALJ found that the policy violated the Act because it was overly broad and essentially banned any discussion of an employee's professional life and negative comments/criticisms of other employees. The ALJ found that, as a result, the policy prohibited employees from discussing the terms and conditions of employment, which is an activity clearly protected by the Act. The ALJ concluded that because the policy contained no narrowing or clarifying language, and did it further define any terms, the policy was unlawful.

That last part is interesting to us, because the NLRB has repeatedly emphasized the importance of clarifying language in policies, and has encouraged employers to carefully define terms. It looks to us like the employer in this case gave that a shot, and one could argue that the employer did define gossip carefully. One could also argue that a reasonable reading of the policy would render it lawful. Obviously, the ALJ did not see it that way.

The ALJ also concluded that, because the employee who brought the complaint was terminated, in part, for violating the policy, her termination was also a violation of the Act. The ALJ ordered that the employee be made whole.

This decision is another in a series of decisions attacking employer workplace policies. Unfortunately, this trend is likely to continue. Employers should not simply throw up their hands and give up, however. Instead, employers should work with counsel to careful draft policies and procedures. In addition, employers should continue to closely scrutinize termination decisions that may involve protected activity under the Act.

NLRB Decisions to Fall Like Dominos?

As you may have heard, the District of Columbia Circuit Court of Appeals recently sent shockwaves through the labor relations world by holding that President Obama's "recess" appointments to the National Labor Relations Board were invalid. The court concluded that, as a result, the Board was acting without a quorum and did not have the power to render binding decisions. The question has now become, how many Board actions will go down?

The decision, Noel Canning v. Nat'l Labor Relations Bd. (pdf), addressed the President's ability to make "recess" appointments, that is, appointments to executive branch positions without the confirmation of the Senate. The court concluded that the "recess" appointment power is available, not surprisingly, only when the Senate is actually in recess. The three Board appointments at issue were declared invalid because the Senate was not in recess at the time the appointments were made. The court concluded that, since the appointments were invalid, the Board has been operating without a quorum since January 4, 2012. As such, in accordance with the Supreme Court of the United States' holding in New Process Steel v. Nat'l Labor Relations Bd. (pdf), the Board's decision was null and void.

The wave of challenges to the Board's actions rendered since January 4, 2012, (and some even prior to that date) has begun to crest. Interestingly the Noel Canning court, anticipating the likely impact of its decision, noted that it was not concerned about the repercussions of its holding on the Board. The Board, on the other hand, seems to have taken the position (in a January 25, 2013 press release) that the impact of Noel Canning is limited to only that case and therefore, its other decisions remain valid.

Despite the Board's position, one key decision that could be washed away is the Board's holding in D.R. Horton, Inc. (pdf).  In that groundbreaking case, the Board held that mandatory arbitration clauses in employment agreements that prohibit class-based claims violate the National Labor Relations Act. Although rendered before the January 4, 2012 appointments at issue in Noel Canning, the D.R. Horton decision was rendered by a Board that also included at least one recess appointment. This decision was already on appeal, but the attorneys for D.R. Horton have the appeals court to consider the impact of Noel Canning.

Also, HealthBridge Management LLC asked the Supreme Court to make a splash by requesting that the Court issue an emergency stay of an injunction issued by the Board due to the uncertainty surrounding the Board appointments. Last week, however, the Court denied the petition. The impact of the decision may also be felt in other areas outside of labor law. For example, there has been a challenge to the "recess" appointment of the director of the relatively new federal Consumer Financial Protection Bureau that could undermine the actions of that agency.

For now, it appears that chaos reigns. Prudent employers, both union and non-union alike, are wise to proceed with caution in assessing the damage. President Obama has almost four years left in office, and it may be safe to assume that the Board, when properly constituted, will return to its pre-Noel Canning agenda.

Discharge Over Facebook Posting Lawful

On November 8, 2011, we reported that a National Labor Relations Board Administrative Law Judge issued an interesting decision involving an employee who was discharged for posts he made on his Facebook page. The ALJ found that the employee was not discharged in violation of the National Labor Relations Act, because even though some of the employee's Facebook posts were protected, the employee's termination was based on only non-protected posts. Recently, the Board upheld the ALJ's decision, providing helpful guidance to employers on the limits of the NLRA's protections.

On September 28, 2012, the Board affirmed the ALJ's decision in Knauz Motors, Inc. (pdf) The key question was whether the employee was fired for engaging in "concerted protected activity" under the NLRA. At issue were two Facebook posts made by the employee. The first included "mocking and sarcastic" pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found, and the Board agreed, that since the food choices could impact the employee's commissions, which were a term and condition of his employment, the pictures and mocking comments were "concerted protected activity."

The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ's conclusion that these posts did not constitute concerted protected activity because there no was connection to the employee's terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee's discharge was not a violation of the NLRA because he was terminated for the non-protected posts, and not the posts regarding the sales event.

The Board also agreed with the ALJ that some of the employer's policies were overly broad in violation of the NLRA, including the employer's Courtesy Policy. The Courtesy Policy provided: 

Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.

The Board held that the prohibition on "disrespectful" conduct and "language which injures the image or reputation of the Dealership" could be construed to prohibit protected activity, and therefore, was unlawful.

While there is some good news in the Knauz Motors decision, specifically that there are limits to the protection afforded to employees who take to Facebook to mock their employers, there continues to be frustration regarding the broad reading of the NLRA. As a result of the Knauz Motors decision, some employers may need to update their policies, again.

NLRB Decision Could Interfere With Workplace Investigations

This post was contributed by Rick L. Etter, an associate in McNees Wallace & Nurick LLC's Labor and Employment Group.

The National Labor Relations Board recently issued a decision holding that an employer violates the National Labor Relations Act by establishing workplace investigation procedures, policies, or forms that attempt to prohibit employees from discussing ongoing workplace investigations with their coworkers. Specifically, the Board concluded that such a rule violates Section 7 of the NLRA, which protects employees’ rights to engage in “concerted activities” for their mutual aid and protection.

In Estrella Medical Center, the employer established a standard investigation process that included the reading of six introductory statements before each witness interview. One of the six statements was a confidentiality statement instructing the witness that he or she was prohibited from discussing matters related to the investigation until the investigation was complete. The Board determined that the employer failed to establish that its interest in protecting the integrity of the at-issue investigation outweighed the employee’s Section 7 rights because the employer developed a “blanket approach” of reading this statement before every interview. The Board explained that it is the employer’s burden to determine – on a case-by-case basis – whether the circumstances of each specific investigation are such that witnesses need protection, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover up. Only when one of these concerns is present will the employer’s interest in protecting the integrity of the investigation outweigh the employees’ Section 7 rights.

As a result of this decision, it would be prudent for all employers – union and non-union – to review their investigation policies, procedures, and forms to ensure that they cannot be interpreted as creating a blanket prohibition against employee discussion of workplace investigations.

Three's Company: NLRB Issues Third Social Media Policy Report

This post was contributed with the assistance of Lee E. Tankle, a summer associate with McNees Wallace & Nurick LLC.  Mr. Tankle will begin his third year of law school at William & Mary School of Law in the fall, and he expects to earn his J.D. in May 2013.

The National Labor Relations Board's ("NLRB") Acting General Counsel ("AGC") released yet another social media report recently (pdf), the third report in the last nine months. The report summarizes the AGC's view on seven social media policies' compliance with Sections 7 and 8 of the National Labor Relations Act ("NLRA").  This latest report, unlike the last two reports, does provide some guidance to employers on how to craft a social media policy that the AGC would deem lawful under the NLRA. 

Importantly, Section 7 applies to all employers covered by the NLRA, regardless of whether an employers' employees are represented by a union. Section 7 provides employees the right to collectively bargain, self-organize, form, join, and assist labor organizations as well as refrain from participation in any of these activities. Section 8 prohibits employer interference with the exercise of Section 7 rights and is violated if employer activity would reasonably tend to chill employees in the exercise of their Section 7 rights.

The AGC makes clear in the report that policies that are ambiguous as to their application to Section 7 activity, and policies that contain no limiting language or context to clarify that the policy will not interfere with Section 7 rights, will be deemed unlawful. According to the AGC, the following social media policy provisions could "chill" employee rights and are unlawful under the NLRA:

• Provision forbidding release of confidential customer, employee or company information;
• Provision forbidding employees from publicly stating opinions about work satisfaction or dissatisfaction, wages, hours or work conditions;
• Provision requiring information posted about the employer to be "completely accurate and not misleading";
• Provision preventing employees from posting photos, music, videos and quotes of others without obtaining owner's permission;
• Blanket provision preventing the use of employer's logo or trademarks;
• Blanket provision banning offensive, demeaning, abusive, or inappropriate remarks;
• Provision instructing employees to think carefully before "friending" co-workers;
• Provision instructing employees to report unusual or inappropriate social media activity;
• Provision telling employees they should use internal resources rather that airing grievances online;
• Provisions requiring employees to "avoid harming the image and integrity of the company" and banning "disparaging or defamatory" remarks;
• Broad prohibition of social media use on "company time";
• Broad prohibition on employees communicating with the press; and
• Broad prohibition on employees communicating with government agencies.

Furthermore, the AGC does not look kindly upon blanket "disclaimer" provisions that merely state that policies will be administered in compliance with Section 7. These provisions are unlikely to protect an employer from a social media policy related claim. 

However, the news was not all bad.  The AGC made clear that the inclusion of examples of prohibited conduct can help clarify ambiguities.  In addition, certain disclaimer provisions may save an otherwise overly broad policy.  In addition, the following social media policy provisions were found to be lawful:

• Provision encouraging employees to be suspicious and use caution when asked to reveal confidential information;
• Provision requiring employees not to post product safety performance information;
• Provision banning online harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace;
• Provision requiring employees to seek permission before posting in the name of an employer or posting in a manner that could reasonably be attributed to the employer; and
• Provision requiring employees to state that their postings are their own and do not represent employer's positions, strategies, or opinions.

Interestingly, the AGC also provided a sample social media policy that he deemed lawful.  While the sample policy will not be sufficient for the majority of employers, and we do not suggest merely adopting the policy wholesale, it is a good start.  While it is possible to have an effective social media policy while ensuring that your employees Section 7 rights remain uninhibited, you should still be sure to craft such a policy with the assistance of counsel.  If you have any questions about your company's social media policy, please contact a member of the McNees Wallace and Nurick Labor and Employment Law Practice Group.

NLRB Notice Posting Saga Continues: Federal Court Blocks Board's Rule

The National Labor Relations Board’s notice posting rule has been under fire since it was issued last year. In the past few months, the rule has garnered significant attention in courts around the country. The rule would require all employers subject to the Board’s jurisdiction to notify employees of their rights under the National Labor Relations Act, including the right to unionize. To that end, employers were required to post a Notice of Employee Rights in the workplace by April 30, 2012.

Earlier this week, we reported on a recent decision from the U.S. District Court for the District of South Carolina striking down the Board’s notice posting rule because it went beyond the scope of the Board’s limited rulemaking authority. The South Carolina decision followed on the heels of a decision by the District Court for the District of Columbia that upheld the posting rule. (While the D.C. court upheld the posting requirement, it struck down the part of the rule that would impose penalties on employers who failed to comply.) Business groups immediately appealed the D.C. decision to the U.S. Court of Appeals for the D.C. Circuit.

In light of these conflicting decisions, and with the end of April quickly approaching, employers were left wondering whether the Board would again postpone the effective date of the rule. Well, employers just got an answer. Or at least a temporary one.

On April 17, 2012, in response to an emergency motion, the D.C. Circuit issued an injunction blocking the Board from implementing the posting rule during the appeal. In its decision granting the injunction, the D.C. Circuit referenced the earlier South Carolina opinion and the uncertainty about the enforcement of the rule.

As a result of the court’s injunction, employers nationwide are relieved from having to comply with the notice posting rule until the conclusion of the appeal. While the appeal is on an expedited schedule, a decision is not expected until September 2012 at the earliest.

Federal District Court Strikes Down NLRB Rule on Notice Posting

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Law Practice Group.

Readers of this blog may recall our article from March 6, 2012, where we noted that the NLRB’s controversial Final Rule requiring employers to notify employees of their NLRA rights had been upheld by the U.S. District Court for the District of Columbia (pdf). We pointed out at that time that there was another federal court challenge to the Final Rule which had not yet been adjudicated.

On April 13, 2012, Judge David C. Norton, of the U.S. District Court for the District of South Carolina, decided that the Board did not have the authority to issue the Notice Posting Rule (pdf) and therefore found it unlawful under the Administrative Procedure Act. 

Unlike Judge Jackson of the D.C. District Court, who ruled that the Board had “broad authority” to issue such rules, Judge Norton found that the Board’s rule-making authority was limited to subjects necessary to carry out its functions under the NLRA, such as investigating unfair labor practice charges and conducting representation elections. The Board’s role was to be “reactive,” Judge Norton held, not “proactive.” He also questioned whether the Board's Final Rule was consistent with Congressional intent, noting as follows:

"Congress has inserted at least eight additional notice requirements in federal labor laws since 1934, while the NLRA remained silent. . . . Congress clearly knows how to include a notice-posting requirement in a federal labor statute when it so desires."

Of most immediate concern is how the Board will respond to the South Carolina decision, which on its face relieves only South Carolina employers from the obligation to post the Notice which is otherwise effective on April 30. No doubt the Board will appeal Judge Norton’s decision to the U.S. Court of Appeals for the Fourth Circuit. (The Court of Appeals for the D.C. Circuit is already considering appeals from Judge Jackson’s March 2012 decision.)

Will the Board voluntarily delay the effective date of the posting requirement pending further developments? We would hope that as a federal agency charged with implementing uniform, nation-wide labor relations policies, the Board will again postpone the posting requirement, but we shall await the Board’s pronouncement and will communicate further once the Board announces its decision.

NLRB to Expand Outreach Campaign Targeting Nonunion Employees

The National Labor Relations Board’s (“NLRB”) aggressive campaign to educate non-union employees about their rights under the National Labor Relations Act (“NLRA”) is in full swing.

In addition to the mandatory notice posting requirement that will go into effect for all employers on April 30, the NLRB recently announced its plan to launch a new website designed to educate both union and non-union employees about their rights under the NLRA. These rights include the rights to discuss working conditions and to present grievances to their employers. Under the NLRA, employees have a right to engage in such “protected concerted activity,” even when they are not union employees or involved in union organizing efforts.

The new website will be rolled out in mid-April, just before employers are required to post the Notice of Employee Rights. The NLRB also plans to distribute pamphlets, published in both English and Spanish, addressing workers’ rights and to publicly discuss this information across various media outlets.

This aggressive educational campaign could lead to more complaints from workers. Accordingly, employers should ensure that they have appropriate policies in place that comply with the NLRA. Employers also should ensure that their managers are properly informed of employee rights under the NLRA and trained on how to respond to employee complaints.

We will keep you updated as new developments are announced.

NLRB Again Postpones Employee Notice Rule's Effective Date

On December 23, 2011, the National Labor Relations Board announced that it had agreed to again postpone the effective date of its controversial Employee Notice Posting Rule.  In the news release announcing the postponement, the Board confirmed that the postponement was agreed to at the request of the federal court in Washington, D.C., which is hearing one of the legal challenges to the Notice Posting requirement. 

On October 6, 2011, we discussed the requirements of the Notice Posting Rule and the Board's announcement that it was delaying the implementation date for the Notice Posting Rule until January 31, 2012

The Notice Posting Rule will now become effective on April 30, 2012, if the challenges to the Rule are unsuccessful. 


NLRB Postpones Employee Notification Rule's Effective Date

This post was contributed by Adam R. Long, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group. 

In August, the National Labor Relations Board (NLRB) issued a controversial Final Rule that would require most private-sector employers to notify their employees of their rights under the National Labor Relations Act with a new mandatory workplace poster. The rule's effective date originally was November 14, 2011.

Groups like the National Association of Manufacturers, the National Federation of Independent Business, and the U.S. Chamber of Commerce filed lawsuits seeking to block the implementation of the rule's notice-posting requirements. These groups challenged the rule on various grounds, including their position that the rule's notice-posting requirements exceed the NLRB's statutory authority.

On October 5, 2011, the NLRB announced that it was delaying the implementation date for the notice-posting rule until January 31, 2012. The NLRB claimed that it postponed the deadline "in the interest of ensuring broad voluntary compliance."  Other reports indicate that the NLRB postponed the implementation date in response to a specific request to do so by the Judge in one of the pending cases challenging the rule.

Regardless of the NLRB's actual motivation, the decision to delay the notice-posting rule's effective date gives most private-sector employers a reprieve from posting the controversial notice. Employers should continue to monitor this issue, as courts considering the various challenges to the rule likely will issue decisions between now and January 31 that may affect the posting requirement and/or its effective date.

Please note that the NLRB's notice-posting rule and the postponement of its effective date do not affect federal contractors, who already are required to post a similar notice under Executive Order 13496 . Executive Order 13496 applies to (1) most contractors and subcontractors who hold a Federal or Federally-assisted construction contract in excess of $10,000; (2) most non-construction contractors and subcontractors who have a government contract or subcontract, or government bills of lading, of $10,000 or more; and (3) any entity that either serves as a depository of Federal funds in any amount or is a financial institution that is an issuing and paying agent for U.S. savings bonds or savings notes in any amount.

First NLRB Administrative Law Judge Opinion On Employee Discipline For Social Media Use

On September 6, 2011, the National Labor Relations Board (Board) announced that a Board Administrative Law Judge (ALJ) had issued the first decision involving employee social media use. We previously reported that the Board has been very active in this area, issuing complaints and guidance, but this is the first actual decision from a Board ALJ. In the decision, Hispanics United of Buffalo (PDF), the ALJ ruled that the non-profit employer unlawfully discharged five employees after the employees posted comments on Facebook.

The ALJ first found that the small non-profit organization (which after the terminations at issue had only 25 employees) was covered by the National Labor Relations Act (NLRA), even though the organization operated only in the Buffalo, New York area. The ALJ went on to hold that the employees' Facebook comments amounted to concerted protected activity under the NLRA, and as such, their comments were shielded from discipline.  The ALJ concluded that the terminations were therefore unlawful, and ordered the employees reinstated with back pay.  

The facts are as follows:

An employee of Hispanics United of Buffalo, Inc. (HUB), who we will call the “Targeted Employee,” was repeatedly critical of her coworkers, because she believed that the coworkers did not provide adequate services to HUB’s clients. In October 2010, one of the criticized employees complained about the Targeted Employee on Facebook, and several of her coworkers commented on the post, which used the Targeted Employee’s name. Different people will likely have different views of the Facebook posts, but there is no dispute that the comments included vulgar language, sarcasm, and in my opinion, inappropriate comments that were critical of HUB’s clients.

The Targeted Employee sent a text message to HUB’s Executive Director complaining about the Facebook posts, which she believed constituted “cyber-bullying.” A few days later, the Executive Director terminated the five employees that were involved in the Facebook discussion. The Executive Director determined that the comments violated the HUB’s harassment policy.

After a hearing, the ALJ concluded that the Facebook discussion was concerted protected activity under the NLRA. The ALJ found that the discussion involved the terms and conditions of employment, specifically, job performance and staffing levels (even though there was no mention of inadequate staffing and none of the employees claimed that they actually performed their jobs satisfactorily).

The ALJ also found that the vulgar language and sarcastic remarks were not sufficiently inappropriate to lose the protection of the NLRA. The ALJ held that the some of the employees did not use the Targeted Employee’s name, that the posts were not made from HUB computers, and that the comments were not really in violation of the HUB harassment policy.

The ALJ commented that “regardless of whether the comments and actions of the five terminated employees took place on Facebook, or ‘around the water cooler’ the result would be the same.”  But interestingly, the ALJ held that because the comments were not made in the workplace, even though they were viewed by several coworkers and a member of HUB’s board of directors, they were less egregious. Some might argue that posts on the Internet can be far more detrimental to an organization than passing comments “around the water cooler,” since the posts may be viewed by anyone, such as clients, customers, and board members, and the posts may remain available for viewing for a long period of time.

Nonetheless, the ALJ concluded that the employees were unlawfully terminated for engaging in concerted protected activity, and therefore, he ordered all five employees reinstated with back pay and interest.

This first ALJ decision is important because it serves as a reminder that the Board has broad jurisdiction to enforce the NLRA, which covers both union and non-union employers, and both for-profit and non-profit employers in some cases.  All employers, whether unionized or not, must be sure to conduct a thorough investigation before issuing disciplinary action, particularly if that disciplinary action will be based on an employee’s social media use. The investigation should document exactly what was said, who said it, when it was said, who may have viewed the posts, and whether or not the comments involved "terms and conditions of employment." As this case illustrates, that phrase may be interpreted broadly.

National Labor Relations Board Issues Social Media Report

Recently, the Acting General Counsel of the National Labor Relations Board (Board) released a report, basically a score card, detailing the Board’s actions on 14 cases involving social media. Employee social media use has been a hot topic for the Board, for both union and non-union employers, and for us.

The Acting General Counsel’s report (PDF) is insightful and it covers a wide range of issues, including when employee social media use is protected by the National Labor Relations Act (NLRA), the permissible scope of employer social media policies, and how unions can get in trouble when using social media.

The report’s discussion of cases involving employee discipline confirms things we have previously discussed: the NLRA protects employees who engage in concerted activity from discipline, but there are limits to that protection and certain activity will lose the protection. Based on a review of the report, it seems that the Board is willing to stretch the definition of protected activity to shield employee social media activity. For example, the report indicates that the Board has found protected activity where an employee called a supervisor an “a—hole” and were an employee referred to a supervisor as a “scumbag.” It seems that the home team is getting the calls.

The report also details when employer social media policies end up out of bounds, which apparently, is quite frequently. The Board did not approve of any of the employer social policies reviewed, and found only one provision of one policy acceptable. The Board found that all of the policies were overly broad and not narrowly drawn; and therefore, in violation of the NLRA.

The report provides valuable insight into the Board’s view of social media in the workplace, and the odds that will face employers, both unionized and non-union employers alike, if employees file charges related to social media use.

NLRB Issues Controversial Employee Notification Rule

On August 25, 2011, the National Labor Relations Board ("NLRB") announced the issuance of a "Final Rule" that will require employers to notify employees of their rights under the National Labor Relations Act ("NLRA"). The Final Rule will take effect on November 14, 2011.

Which employers are affected by the Final Rule? The Final Rule applies to any employer that is covered by the NLRA. This includes most employers in the private sector; however, certain employers with an annual business volume of less than $500,000 may be excluded. Small businesses should consult with counsel to determine whether they fall under the NLRB's jurisdiction. Federal contractors who already post a similar notice under Executive Order 13496 are deemed to comply with the Final Rule if they comply with notice posting regulations under the Executive Order.

What are the notification requirements? Covered employers must post the required notice "in conspicuous places" where it is "readily seen by employees, including all places where notices to employees concerning personnel rules or policies are customarily posted." The required notice informs employees of their rights under the NLRA. These include the rights to organize a union, bargain collectively, discuss wages with co-workers and to engage in a strike and other "protected concerted activity." The notice also provides information as to how employees may contact the NLRB for more information regarding their rights.

The required poster will be made available on the NLRB website. Employers may post the official color poster that appears on the NLRB website, or a black and white photocopy of it; however, all posted notices must be at least 11" by 17" and the same font as the official notice. In workplaces where 20% or more of the workforce is not proficient in English, special rules apply regarding posting the notice in other languages. Electronic posting on a company's intranet or Internet site is also required "if the employer customarily communicates with its employees about personnel rules or policies by such means."

What happens if an employer fails to comply? Employees may report employer non-compliance to the NLRB and failure to post the notice may result in the filing of an unfair labor practice charge ("ULP") with the Board. The Final Rule provides detailed instructions to employees on the process for filing a ULP charge. If an employer refuses to comply after receiving notice of non-compliance, the Regional Director for the NLRB may issue a formal complaint and schedule a hearing before a federal administrative law judge who may then issue an order requiring posting. A willful refusal to post the notice may be deemed by the NLRB as evidence of "unlawful motive" in cases where an employee alleges other violations of the NLRA (e.g. discrimination on the basis of union activity). In addition, in such cases where an employer fails to post the notice, the Board may excuse employees from the six-month statute of limitations for filing ULP charges based on other alleged unlawful conduct by the employer.

Why is the Final Rule controversial? The Final Rule is particularly controversial because the threat of union organizing is a hot button issue for many employers and the Final Rule is widely viewed as a political payback to unions by the current Administration. The sole Republican appointee on the Board dissented to the issuance of the Final Rule. Although employers are already required to post notices under several other federal employment laws (e.g. Title VII), those laws typically contain specific notice provisions – the NLRA does not. This is the first posting requirement of general applicability issued by the NLRB since the NLRA was passed in 1935. It remains to be seen whether business groups or political opponents of the Final Rule will take legal or political action to block enforcement.

If you have any questions regarding the Final Rule, you may contact any member of McNees Wallace & Nurick's Labor and Employment Law Group by clicking here.

Another Update on Social Media and Employee Discipline

We previously reported, the National Labor Relations Board (Board) has been very active in the area of employee social media use.  Recently, the Board's Office of General Counsel issued three (3) Advice Memorandums directing the dismissal of charges, which challenged discipline issued to employees based on the employees’ social media activity. This latest action, or inaction, by the Board offers us an opportunity to provide another update on social media and employee discipline. 

The National Labor Relations Act (NLRA) protects employees who engage in concerted activity from discipline. Board precedent defines concerted activity as (1) group action or action on behalf of other employees; (2) activity seeking to initiate or prepare for group activity, or (3) bringing a group complaint to the attention of management.  The recent announcements by the Board's Office of General Counsel shed light on the limits of the protections afforded to employees by the NLRA.

For example, in a July 7, 2011 Advice Memorandum, the Associate General Counsel (AGC) directed dismissal of a charge involving a bartender discharged via Facebook message! That’s right, the bar owner actually discharged the employee via Facebook message. The bartender had complained to his step-sister on Facebook about the fact that he had not received a pay raise and about the bar’s tipping policy. The bartender also made derogatory comments about the bar’s customers. The AGC found that the bartender had not engaged in concerted activity because while the post did address the terms and conditions of his employment, the bartender was not discussing these issues with his coworkers and there was no attempt to initiate group action.

In another case, the AGC directed dismissal of a case involving the discipline of a Wal-Mart employee who posted negative comments about his supervisor because the supervisor had criticized his work performance. Even though the employee’s post was commented on by his coworkers, the AGC found that the employee was merely griping, which is not concerted activity.

In a July 19, 2011 Advice Memorandum, the AGC directed dismissal of a charge challenging the discharge of an employee who made comments on Facebook, while at work, that mocked the mentally ill patients to whom the employee was supposed to be providing care. The AGC found no concerted activity because the employee was not communicating with coworkers, she was not discussing the terms and conditions of employment, and because she was merely having a personal conversation with a friend.

These decisions reflect that the NLRA does have limits and it will not shield all employee social media activity from discipline. Furthermore, it is important to note that in some cases, employee activity may be so inappropriate that it loses the protection of the NLRA, even if it was protected concerted activity. The Advice Memorandums summarized above did not have to address this issue because the social media activity was not protected.

While these decisions do provide some clarification for employers, they also highlight the fact-intensive nature of the analysis used to determine whether an employee has engaged in protected activity under the NLRA. Therefore, employers are still advised to seek counsel when considering possible disciplinary action for an employee based on the employee’s social media activity.

NLRB Announces Proposed Rule Changes That Will Greatly Assist Union Organizing

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Group, and Adam L. Santucci, Esq., an Associate in the Group.

On June 22, 2011, the National Labor Relations Board (Board) published a Notice of Proposed Rulemaking that, if finalized, would significantly change the union representation election process. According to a Board "Fact Sheet," the changes are designed to "reduce unnecessary litigation, streamline pre- and post-election procedures and facilitate the use of electronic communication and document filing." But the lone Republican Board Member, Brian E. Hayes, in a stinging dissent, seems to have more accurately characterized the proposed rule change as an "administrative fiat" which will "impose organized labor's much sought-after 'quickie election' option, a procedure under which elections will be held in 10 to 21 days from the filing of the petition." Hayes further described the proposal as an effort "to eviscerate an employer's legitimate opportunity to express its views about collective bargaining."

The time between the date the petition is filed and the date of the election is critical for employers, because it is often the only time the employer will have to express its views regarding unionization. Often an organizing effort may have been ongoing for weeks or months without the employer's knowledge, and the employer only learns of the campaign when the election petition is filed with the Board. This means that the employees are only getting one side of the story, the union's side, prior to the filing of the petition. A shorter time between the filing of the petition and the election date will deprive employers of the time necessary to fairly present both sides of the representation question to employees.

Currently, the Board's operational goal is 42 days between the filing of the petition and the election, with the median time actually being only 38 days. Under the proposed rules, this time would be shortened significantly. The changes would require a pre-election hearing within seven (7) days of the filing of the petition and would defer rulings on any election issues until after the election, unless the issues would impact at least 20 percent of eligible voters. After an election has been directed, the employer would have only two (2) days to produce a list of eligible voters (not the current seven (7) days), which must include the names, home addresses, phone numbers, and if available, email addresses of these individuals. Currently, only names and addresses are required. In addition, the Board would have discretion to decline to review Regional Director rulings on post-election challenges.

These proposed rule changes, which also include the implementation of electronic filing of petitions, may not be quite as drastic as the changes that would have been wrought by the failed Employee Free Choice Act (EFCA). Nonetheless, the proposed changes have been highly applauded by unions (which are already winning NLRB elections - 69% of elections held in 2009 and 68% of elections held in 2010). EFCA would have eliminated secret ballot elections, required arbitration over the terms of a first collective bargaining agreement if the parties were unable to reach agreement, and increased penalties for employers that engaged in unfair labor practices. EFCA has stalled since the November 2008 elections, and it seems that the Board's real motivation in proposing the election changes is to enable organized labor to increase its representation in the private sector workforce, where only 7% of employees are currently unionized.

In other recent developments, the activist Obama Board has also filed a lawsuit against Boeing Co., over Boeing's decision to perform manufacturing work at a non-union facility in South Carolina. The Board has also been highly active in protecting and advocating the use of social media for employees and unions. And, in December 2010, the Board announced a Notice of Proposed Rulemaking that would require virtually all private sector employers to post a notice to employees regarding their rights to organize under the National Labor Relations Act. In addition, the Department of Labor has announced a Notice of Proposed Rulemaking that would require further disclosure of employer use of consultants during union organizing campaigns, in an obvious effort to discourage the use of such consultants.

These developments send a loud and clear message that the current administration emphatically supports union organizing efforts. Employers must be aware that if the Board's proposed rules become final, employers will be significantly restricted in their ability to respond to union organizing campaigns. Therefore, employers must become more proactive than ever in addressing employee relations issues now and conducting union avoidance training for their supervisors and managers.

An Update on Social Media and Employee Discipline

A few months back, we reported that the National Labor Relations Board (Board) had issued a complaint against a company for disciplining an employee because she posted insulting remarks about her supervisor on her Facebook page. We subsequently reported that the complaint was settled. Since that time, the Board has remained very active in the the social media area, and has demonstrated an apparent desire to actively police that space.  The Board has issued several complaints, which send a strong message that the Board is interested in protecting the social media space for employees.

Before we move forward to discuss the Board's activity, lets first take a step back and remember that the rules of the game have not changed too much. The only difference is, the game is being played in a new arena. Since the enactment of the National Labor Relations Act (Act), employees have had the right to engage in concerted activity and to discuss the terms and conditions of employment without retribution from their employers. The right to discuss the terms and conditions of employment, includes the right to discuss wages, benefits, working hours and working conditions, and under the Board's precedent, also includes the right to complain about supervisors and managers in some cases. The Act prohibits covered employers from disciplining employees who exercise these rights.

While these employee rights have not changed, they are now being exercised in a new forum. Employees, and unions, have flocked to social media. Unions are using social media to help organizing campaigns, and employees are using social media for just about everything. As a result, conversations that used to occur in the break room and bar room now take place on Facebook or via Twitter. In the past, employers were probably not even aware that employees were discussing the terms and conditions of employment, but now these conversations on posted on the Internet, and in some cases, have a very wide audience.

When these discussions are offensive or disparaging, employers often want to take action. Understandably, employers may wish to discipline employees whose comments demonstrate a lack of professionalism or violate employer policies. However, the Board has been quick to step in and issue a complaint if, in the opinion of the Board, the employer's action has violated the Act.

The Board has issued complaints involving Facebook and Twitter, complaints involving negative comments about individual supervisors and the employer as a whole, and complaints against both union and non-union employers. As the Board's first widely publicized social media complaint demonstrates, it does not matter what the forum is, employers cannot discipline an employee for discussing the terms and conditions of employment, and social media policies cannot prohibit employees from exercising their rights under the Act. The Board seems intent on protecting employee use of social media. Importantly, however, the Board's authority ends at the outer limits of the Act. Recently, the Board dismissed a complaint involving an employee termination because the employee's inappropriate tweets did not involve the terms and conditions of employment and therefore, were not "protected activity" under the Act.

The Board's activity highlights some key points. 

First, the Board is not afraid to step into the social media fray, even though many employers themselves have not yet entered that space. Also, employers need to remember that if they are covered by the Act, whether or not they are a union or non-union workplace, they must comply with the Act's requirements. In addition, employers should have social media policies in place, but those policies cannot prohibit employees from engaging in protected activity. Finally, only certain activity is protected by the Act, not all employee social media activity is protected.

Generally speaking, these rules are not new. What is new is that employers must develop and implement a social media policy if they have not done so already. All employers need to have social media policies in place to ensure that they are not caught flat footed when the first social media issue pops up. And, if that has not happened already, it soon will. A good social media policy is written using plain language, reflects the employer's risk tolerance and culture, and provides employees guidance on appropriately using social media.

Finally, employers covered by the Act must be sure to take appropriate precautions before disciplining an employee based on content posted on a social media site. As we have seen, the Board will not hesitate to step in and issue a complaint.


NLRB Settles Facebook Complaint

On November 11, 2010, we reported that the Hartford, CT Regional Office of the National Labor Relations Board (NLRB) issued a Complaint alleging that an employer illegally terminated an employee who mocked her supervisor on her personal Facebook page. Our post can be viewed by clicking here.

On February 7, 2011, the NLRB announced that it had settled the Complaint with the employer. Importantly, under the settlement, the employer agreed to revise its Internet posting policy, which the NLRB had alleged was overly broad and improperly restricted employees from discussing their wages, hours and working conditions with co-workers and others while not at work.

While this settlement was reached at the "Complaint" stage and did not established NLRB precedent, the Complaint itself is clearly an indication of how the NLRB views employees' use of social media. Therefore, all employers, both unionized and non-union, should review and consider revising their electronic resources and Internet postings policies to ensure that those policies would not be viewed as overly broad or overly restrictive if challenged. 

National Labor Relations Board Proposes Rule Requiring Posting of Employee Rights

On December 21, 2010, the National Labor Relations Board ("Board") issued a Notice of Proposed Rulemaking (pdf), which, if finalized, would require employers to notify employees of their rights under the National Labor Relations Act ("Act"). If you would like to review the Board's News Release regarding the proposed rule, please click here (pdf).

The proposed rule would apply to private sector employers covered by the Act, and would require posting of the notice were workplace notices are typically posted. The rule would require electronic posting of the notice if the employer typically posts workplace notices electronically.

Employers interesting in commenting on the proposed rule may do so by following the instructions in the proposed rule. All employers covered by the Act should be sure to stay tuned to ensure compliance, if the proposed rule is finalized.

NLRB Issues Complaint Over Facebook Posts Mocking Supervisor

In what the National Labor Relations Board's (the "NLRB") Acting General Counsel called a "straightforward case" under the National Labor Relations Act ("NLRA"), the Hartford Regional Office of the NLRB issued a Complaint (pdf) alleging that an employer illegally terminated an employee who posted disparaging remarks about her supervisor on her personal Facebook page. While the October 27, 2010 Complaint is only an accusation, and not a formal ruling from the NLRB, the repercussions of this action are critically important for both unionized and non-union employers.

Employees of the employer, American Medical Response of Connecticut, Inc., are represented by Teamsters Local 443. One of those employees posted negative, critical comments mocking her supervisor on her personal Facebook page. Other employees commented on the posts, which prompted the employee to make further negative statements. The employee was subsequently terminated by the employer for posting the disparaging comments on the Internet, because the posts violated the employer's social media policy. The NLRB conducted an initial investigation, and determined that there was enough evidence to warrant a hearing to determine whether the employer violated the NLRA.

The Complaint alleges that the termination violated the NLRA's prohibition against punishing employees for engaging in concerted protected activity. The NLRB Regional Director has taken the position that the employee's disparaging comments about her supervisor were protected activity under the NLRA because the employee was discussing her working conditions. Under the NLRA, employers are prohibited from punishing employees for concertedly discussing wages, benefits and other working conditions. In the NLRB's view, the fact that other employees commented on the employee's post meant that there was concerted activity by the employees.

Importantly for both unionized and non-union employers, the Complaint also alleges that the employer's policies were overly broad and restricted employees from discussing working conditions. In the view of the NLRB Regional Director, the policies alone violate the NLRA.

While this matter is only at the Complaint stage, the Complaint itself is an eye-opener for many employers and may be another sign of things to come from the NLRB. On September 9, 2010, we added a post about President Obama's appointments to the NLRB, and the likelihood that the NLRB would continue to pursue a decidedly pro-union agenda.

Unionized and non-union employers alike must be sure to review all of their policies, including their social media and internet posting policies, to ensure that the policies do not restrict employees' abilities to discuss wages, hours and other working conditions. Also, we will continue to provide updates as this case unfolds, so employers should also be sure to check back for further posts.

Obama Board Expands Unions' Right To Engage In Secondary Boycotts: Stationary "Bannering" Held Not Equivalent To Picketing And Deemed To Be Lawful

This post was contributed by Bruce D. Bagley, Esq., a Member in McNees Wallace & Nurick LLC's Labor and Employment Practice Group.  

In its first major ruling since being reconstituted by President Obama, the Democrat-controlled National Labor Relations Board (NLRB) has rejected the position of the NLRB's General Counsel and has determined that stationary bannering does not violate Section 8(b)(4)(B) of the National Labor Relations Act (NLRA). United Brotherhood of Carpenters Local Union No. 1506, 355 NLRB No. 159 (2010). This decision gives labor unions a powerful weapon: the ability to pressure a secondary (neutral) employer and its customers, in order to gain leverage over the primary employer with whom the union actually has its dispute. The facts in United Brotherhood illustrate the point below.

The Carpenters Union had primary labor disputes with four construction contractors in Arizona, claiming that the contractors failed to pay wages and benefits in accord with "area standards." In furtherance of its primary disputes, the Union protested at two hospitals and a restaurant, secondary employers with whom the Union had no primary dispute. The four construction contractors had engaged in construction work at the sites of the secondary employers.
Section 8(b)(4)(B) of the Act makes it an unfair labor practice for a union to "threaten, coerce, or restrain" a secondary employer where an object is to cause the secondary employer to cease doing business with the primary employer. At issue in United Brotherhood was whether the Union's conduct in "bannering" was the equivalent of picketing, which would have been clearly unlawful, or more like non-coercive peaceful "handbilling," which clearly would have been lawful.

At each of the secondary employers' locations the Union displayed a large stationary banner, either stating "Shame On __________," naming the hospital, or "Don't Eat At __________," naming the restaurant. The banners were three or four feet high and from 15 to 20 feet long. The banners were held in place at each location by two or three Union representatives. The banners were placed anywhere from 15 to 1,050 feet from the nearest entry to the secondaries' establishments. The Union representatives also offered flyers to anyone who would take them, explaining therein that the Union's underlying complaint was with the construction contractors, and that by using these contractors, the hospital or restaurant was contributing to the undermining of area wage standards.

At noted above, the NLRB's General Counsel (as well as the Charging Parties) argued that bannering was the equivalent of picketing, that "picketing exists where a union posts individuals at or near the entrance to a place of business for the purpose of influencing customers, suppliers, and employees to support the union's position in a labor dispute." But a majority of the NLRB disagreed (the two Republican appointees dissenting), finding that bannering was not picketing or its equivalent, because there was no "confrontational" conduct, such as patrolling back and forth in front of the entrance while carrying placards. Absent confrontational conduct, the majority concluded, bannering was more like peaceful handbilling, an exercise in "free speech," and therefore did not "threaten, coerce, or restrain" the secondary employers as would picketing.

There was a vigorous dissent by the minority members of the NLRB, who concluded there was no meaningful distinction between bannering and picketing. All parties would have agreed that a single picketer patrolling back and forth with a sign saying "Don't Eat Here Because This Restaurant Was Built With Non-Union Labor" would be engaged in unlawful secondary boycott picketing. Yet the NLRB's majority would find that three union protesters holding a much larger banner saying the same thing would not be engaged in unlawful conduct because the bannering allegedly does not rise to the level of confrontational conduct!

It will be interesting to see how this decision may be viewed by the reviewing federal Courts of Appeal. In any event, it provides a dramatic example of how the present Obama Board may construe the NLRA in an effort to expand the weaponry and capabilities of organized labor.

New Employee Rights Poster Issued for Federal Contractors

Executive Order 13496, requires federal contractors to post a notice regarding employee rights under the National Labor Relations Act, among other things. The Department of Labor (DOL) recently issued final regulations (pdf) implementing the Executive Order.

Who is covered by the posting requirement?
Prime contracts under $100,000 and subcontracts under $10,000 are not covered by the notice requirements. In addition, government contracts resulting from solicitations issued before June 21, 2010 are exempt. However, it is possible that an exempt contract may nevertheless contain a provision requiring the posting – so careful review of all recent and future federal contracts and subcontracts for this requirement is advisable.

What is the posting requirement?
Covered contractors are required to post a notice "of such size and in such form, and containing such content as the Secretary of Labor shall prescribe…" In other words, contractors don't have the discretion to alter the form of the DOL poster. The DOL poster is currently in two forms:  a one-page 11"x17" version or a two-page 11"x8.5" format.

When does the Executive Order take Effect?
Covered contractors are required to comply by June 21, 2010.

Where must the notice be posted?
The DOL regulations issued state that the notice must be posted:

  • "In conspicuous places in and in and about the contractor's…offices so that the notice is prominent and readily seen by employees…[including, but not limited to]…areas in which the contractor posts notices to employees about the employees' terms and conditions of employment";
  • "Where employees covered by the National Labor Relations Act engage in activities relating to the performance of the [federal] contract" (i.e. work that fulfills a contractual obligation or facilitates performance of the contract or jobs for which the cost or a portion of the cost is allowable as a cost of the contract);
  • A contractor that "customarily posts notices to employees electronically must also post the required notice electronically."

Compliance may require posting in multiple locations (at a minimum, with other postings and where employees performing contract work perform their jobs), electronically and in other languages if a "significant portion" of the contractor's workforce is not proficient in English.

What happens to contractors that fail to comply?
The Office of Federal Contract Compliance Programs (OFCCP) will enforce the Executive Order, and may conduct "evaluations" to determine whether a contractor is in compliance. In addition, employees and individuals may file complaints with the OFCCP or the Office of Labor-Management Standards. If a contractor is found to be in violation, the OFCCP will first seek voluntary compliance. If a contractor still fails to comply, then further action will be taken, including the issuing of a cease and desist order and other "appropriate remedies," which may include penalties and sanctions, including the suspension, cancellation or termination of the contract and even disbarment.

Federal contractors, subcontractors and potential contractors should carefully review Executive Order 13496 and ensure compliance with all of its provisions.

Bosses do not Deserve RESPECT

October 16th is the annual celebration of Boss’s Day, which has traditionally been the day for employees to “thank their boss for being kind and fair throughout the year”. In most workplaces, it is clear who is a boss and who is not. The boss is the one who tells you what to do, completes your performance review and hassles you when you do not follow company policy.

The term “boss” generally means “supervisor”. For us in the legal-compliance world, knowing who is a supervisor and who is not is very important. Supervisors are not paid minimum wage and overtime; cannot be members of a union; and make the company liable for their actions like sexual harassment. Organized Labor has pushed the NLRB to narrowly define supervisor, but the Supreme Court rejected previous definitions as inconsistent with the text of the NLRA. In Oakwood Healthcare Inc, the NLRB modified the definitions of "assign," "responsibly direct," and "independent judgment" (all used to determine a supervisor) to conform to the Supreme Court rulings in NLRB v. Kentucky River Comty. Care, Inc. and NLRB v. HCR.

The RESPECT Act would make three major changes to the current definition. It would eliminate the two most common supervisory duties- the authority "to assign" other employees, and the authority to "responsibly to direct" other employees. In addition, the RESPECT Act would require that the "majority of a supervisor's work time" be spent engaging in the remaining duties outlined in the NLRA definition below.

The new definition of “supervisor” under Section 2(11) of the NLRA would read as follows:

Any individual having authority, in the interest of the employer, and for a majority of the individual’s worktime, to hire, transfer, suspend, lay-off, recall, promote, discharge, assign, reward, or discipline other employees, or responsibly to direct them,or to adjust their grievances or effectively to recommend such action, if in connection with the foregoing the exercise of such authority is not of a merely routine or clerical nature, but requires the use of independent judgment.


Changing the definition of “supervisor” would significantly affect many workplaces by:

  • Create divided loyalties among front-line supervisors who assign work to employees. Under the RESPECT Act, such supervisors would be covered by the NLRA and could then form, join or assist labor organizations; be eligible to vote in NLRB supervised elections; solicit signatures for union authorization cards from "co-workers;" or picket, go on strike or engage in other work stoppages that would be inconsistent with a supervisor's duty.
  • Fundamentally tip the balance between the dual functions of the national labor policy: (1) to protect the rights of rank-and-file employees in exercising their rights to form, join or assist a union without managerial or supervisory interference, while at the same time (2) ensuring supervisors act as agents in the interests of their employers in matters of labor-management relations.
  • To the extent that the NLRA definition is changed, there may also be changes to the FLSA’s definition, triggering litigation involving individuals currently classified, as "supervisors" but who may not meet a new definition.

Organized Labor’s legislative wish list includes the Re-Empowerment of Skilled and Professional Employees and Construction Trades workers ("RESPECT") Act, along with similarly misnamed Employee Free Choice Act.   Candidate Obama supports both acts; while Candidate McCain opposes them. The addition of supervisors to the ranks of potential union members and the ease of organizing workforces without a secret ballot election would dramatically change the balance of labor management relations. It would also greatly increase the dues collected by unions from organized employees.