The National Labor Relations Board (“NLRB”) has changed the way that it will determine whether a mixed group made up of employees from a supplier employer and employees from a host employer may constitute an appropriate bargaining unit. In its July 11th Miller & Anderson, Inc. decision, the Board determined that the consent of both employers is no longer necessary. Instead, the Board will apply its standard community of interest test to determine if such a bargaining unit is appropriate.
In other words, temps employed by a personnel supplier company who work for a business and employees working only for that business will be able to vote on representation together if the two groups perform a similar kind work under similar conditions and have common supervision. Employers hiring temps should be aware that if temps make up a high enough percentage of the bargaining unit, the unit could unionize without any support from the permanent employees working directly for the host employer.
According to the Board, each employer will have an obligation to bargain only over the employees with whom it has an employment relationship and only in regard to the terms and conditions that the business has the authority to control. This means that the host business will have an obligation to bargain concerning the terms and conditions of employment for both the temps and its own regular employees in the bargaining unit, while the temp agency will only have an obligation to bargain with its temps, not the regular employees working alongside them. The business and the temp agency would then need to bargain with employees over the terms and conditions of employment that each employer could control.
This ruling overturns a 2004 decision by the Bush Board, known as Oakwood, and returns to the 2000 decision by the Clinton Board in M.B. Sturgis, which Oakwood had overturned. In Sturgis, the Board had reversed almost thirty years of clear precedent requiring mutual consent of both employers before employees of separate companies could be combined into a single bargaining unit.
The Miller & Anderson decision compounds the existing hazards of outsourcing labor to a temp agency created by the Board’s ruling in Browning-Ferris. In that case, the Board found that the presence of “indirect control” is enough to determine the existence of a joint employer relationship, a significant change from the previous requirement that an employer had to directly exercise its power over employees to establish a joint relationship. As Board member Philip Miscimarra noted in his Miller & Anderson dissent, “the majority’s expansion of Browning-Ferris here will only make it more difficult for parties to anticipate whether, when or where this new type of multi-employer/non-employer bargaining will be required by the Board, nor can anyone reasonably predict what it will mean in practice.” As a final note, given the Board’s predilection for reversing itself, both Browning Ferris and Miller & Anderson will have a short shelf life if the Board’s composition changes as a result of the November elections.
This article is intended to provide general information, not a specific legal opinion or advice. Any particular questions should be directed to your legal counsel. If you do not have legal counsel, please feel free to contact Harmon & Davies, P.C.
Yikes, Judge Says Employer Can’t Ban the Use of Social Media During Company Time
by HDlawblog Posted: Friday, 11/16/2012A National Labor Relations Board (“NLRB”) administrative law judge (commonly referred to as an ALJ) recently directed an employer to remove a provision from its social media policy that prohibited employees from using social media during “company time,” on the basis that such a prohibition violated employees’ rights under the National Labor Relations Act (“NLRA”).
In the EchoStar Technologies, LLC case, an employee challenged two provisions in the company’s updated employee handbook that related to the company’s social media policy. Specifically, the employee challenged the prohibition against making disparaging or defamatory comments about the company and the prohibition against employees using social media with company resources during company time.
The employee argued that such prohibitions violated Section 8(a)(1) of the NLRA, which bans employer interference with an employee’s Section 7 rights. Section 7 of the NLRA protects employees’ rights to engage in unionization activities and the right of nonunion employees to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection. The NLRB general counsel’s office later filed a complaint in the case.
In ruling that both challenged provisions should be removed from the company’s employee handbook, the ALJ noted that this case centered around whether a reasonable employee would view the company’s social media policy as chilling unionization activities or other protected concerted activities. The test for making such a determination is whether an employee’s Section 7 rights “suffered a reduction or inhibition” as a result of the policy. This test is applied with the reasonable person standard, meaning the determination considers how a reasonable person would react to the prohibition, not whether the employees involved actually felt threatened.
The ALJ struck down the ruling banning “disparaging comments” on social media sites on the grounds that it was similar to another case where the NLRB did not allow a rule prohibiting “derogatory” comments about the employer. In Southern Maryland Hospital Center, 293 N.L.R.B. 1209, 132 LRRM 1031 (1989), the NLRB explained that such a ban is problematic because “an assertion that an employer overworks or underpays its employees, which would constitute the most elementary kind of union propaganda, could fairly be regarded as ‘derogatory’ toward the employer.” Accordingly, in EchoStar, the ALJ held that the prohibition against disparaging comments intruded on employees’ Section 7 activities and ordered the prohibition removed from the employee handbook.
Unfortunately, the ruling in EchoStar did not shed much light on why the ALJ struck down the employer’s prohibition against the use of social media on company time. Nevertheless, the ALJ made it clear that such a ban also needed to be removed from the employer’s handbook. We can only surmise that the ALJ agreed with the general counsel’s argument that essentially said the ban was too broad because it could be interpreted as prohibiting employees from participating in social media activities through their own devices and during their breaks, lunch, and before and after work. Notably, the general counsel’s office pointed out that the phase “company time” is ambiguous and had already been found to be problematic in other cases because it does not let employees know that protected activities may occur on breaks, during lunch and before or after work. Although the employer argued that it had a huge problem with employees using social media for personal matters during work hours its argument was to no avail.
Lesson for Employers: Social media policies raise a host of issues. Because overly broad restrictions on employees’ social media use might be deemed to violate the NLRA, employers should seek the assistance of an attorney when crafting their social media policy. The attorneys at Harmon & Davies, P.C. are here to assist you with all such needs.
This article is authored by attorney Shannon O. Young and is intended for educational purposes and to give you general information and a general understanding of the law only, not to provide specific legal advice. Any particular questions should be directed to your legal counsel or, if you do not have one, please feel free to contact us.
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