Posts Tagged ‘National Labor Relations Board’

Upon my arrival at the office this morning, after getting my coffee, I sat down at my computer and went to read BNA’s Daily Labor Report, as I do first thing almost every morning. After reading about the most recent actions in Congress seeking to block the NLRB’s Ambush Election Rules, I was attracted to an article that was entitled “English-Only Policy for Hospital Workers Violated Rights . . .” Since this is an issue that pops up regularly, I wanted to read the most recent case on the subject, so I opened the article and was surprised to find that this was an NLRB case, not an EEOC case. On March 18, 2015, Administrative Law Judge Lisa D. Thompson found that a Nevada health systems policy that required employees to speak English at all times when on duty violated Section 8(a)(1) of the National Labor Relations Act since it could restrict employees from engaging in discussions regarding terms and conditions of employment. The employer argued that its English only rule was based on guidance from the Equal Employment Opportunity Commission that allowed such rules for reasons of business necessity.

Not surprisingly, ALJ Thompson noted that this was an issue of first impression for the National Labor Relations Board, since no prior Decision of the NLRB had ever addressed the issue. Quoting from the Decision, the rule specifically “requires all employees to speak and communicate only in English ‘when conducting business with each other,’ ‘when patients or customers are present or in close proximity,’ and ‘while on duty between staff, patients, visitors [and/or] customers . . . unless interpretation or translation is requested or required.’” In seeking the finding that the rule was a violation of the National Labor Relations Act, Counsel for the General Counsel (in layman’s parlance – the prosecutor) argued that the rule was overbroad and that it inhibited employees, particularly non-native English speaking employees, from being able to freely communicate (in their native language) about working conditions and/or other terms or conditions of employment. As noted, the employer’s defense was based, at least in part, on current EEOC guidance. Although the Administrative Law Judge gave the appearance of analyzing the potential tension between Section 7 of the National Labor Relations Act and the EEOC Guidance, she dealt with this by quickly concluding that the employer’s rule was not justified by business necessity. With respect to the employer’s arguments that nothing in the rule prohibited employees from speaking in their own language on their own time, the Administrative Law Judge launched into a comparison of this rule with the Board’s traditional no-solicitation rule analysis.

Less surprisingly, the ALJ also found Employer rules prohibiting conduct that interferes with the Employer’s operations or brings “discredit” on the Employer, or making negative comments about co-workers or the hospital to be violative of the Act. Even though most Employers would consider these rules to be very reasonable, the Obama NLRB has been striking them down at a rapid rate.  Valley Health System 28-CA-123611

This case appears to represent yet another example of the NLRB’s willingness to expand the scope of its enforcement authority, even if it potentially conflicts with other administrative agencies. Accordingly, employers are advised yet again of the need to thoroughly review all of their existing rules and policies to avoid being found guilty of an unfair labor practice by the National Labor Relations Board.

This article is authored by attorney Thomas R. Davies 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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Posted in NLRB, NLRB | Comments Off on Hospital’s English-Only Rule Declared Unlawful by NLRB – Y Porque ellos? (Who?)

The Color Purple: An Award Winning Film; A Scary NLRB Decision

The 1985 film The Color Purple received several awards, but, surprising to many, no Oscars. The recent NLRB Decision in Purple Communications, Inc. may be popular with organized labor, but the employer community would only give it a Razzie.

In this long-expected Decision, the National Labor Relations Board, by a 3-2 vote, reversed its 2007 Decision in Register Guard. In Purple Communications, the Board majority (comprised of the three Democrat members) established a presumption that all employees with email access have a right to use the Company’s email system for any activity protected by the National Labor Relations Act. This includes both union organizing activity and other “concerted” activity involving wages, benefits, or working conditions. Although the majority indicated that this presumption could be overcome if certain “special circumstances” were established, they failed to articulate what might constitute such special circumstances.

At a recent conference, member Harry Johnson (one of two Republican dissenters) commented upon the fact that some of his fellow Board members lacked technological savvy. In reaching their underlying conclusion that restrictions on the rights of employees to use the Company’s email system constituted an unreasonable impediment to their ability to engage in protected activity, the majority demonstrated this lack of tech savvy by failing to properly take into account the numerous alternatives which now exist, such as Facebook, Instagram, Twitter, etc.

Fortunately, the Decision is limited in that it applies only to the Company’s employees, not non-employees, it only applies to the use of the Company’s email system, not other forms of electronic communications maintained by the employer, it only applies to those employees who are already authorized to use the Company’s email system, and is subject to “reasonable” restrictions, such as being used only during “non-work times.”

Members Miscimarra and Johnson, in dissent, criticize not only the legal rationale for the Decision, but also point out the numerous issues which will be created by the presumption established by the majority. For example, they note the difficulty, if not virtual impossibility, of distinguishing between the use of email during work time and non-work time. They also point out that while the majority theoretically recognized the right – and in some cases – the need (such as when there is an allegation of harassment involving the use of email) for employers to monitor its employees’ use of email, they underestimate the risk that such monitoring could lead to unfair labor charges of surveillance.

It is important to note that this Decision applies to all employers, not only those who are unionized. It is incumbent upon every employer to review their current electronic communication policy and consider revising it so that it is in compliance with the new NLRB-established standards. Alternatively, since this Decision will likely be appealed (or reversed by a future Board), employers could wait and see what develops. It would certainly be risky, however, to discipline anyone based upon a policy that was not consistent with Purple Communications.

This article is intended to provide 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 Tom Davies, Esq. or Laura Gallagher, Esq., Harmon & Davies, P.C., at 291-2236.


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Posted in Labor & Employment, NLRB, NLRB, Social Media | Comments Off on The Color Purple: An Award Winning Film; A Scary NLRB Decision

Joint Employer Status and the NLRB

Late last month, NLRB General Counsel Richard Griffin announced that he has authorized issuance of Unfair Labor Practice Complaints based on 43 of the 181 pending charges against McDonald’s, USA, LLC and various of its franchises, in which the Board will allege that the company and its franchisees are joint employers. This decision goes against decades of decisions and case law and could potentially be devastating to the franchise system as we know it. If upheld, the determination would bring McDonald’s (with its deep pockets) to the bargaining table in connection with a wide variety of employment related claims. The financial strength of McDonald’s would make forming a union more attractive to workers. McDonald’s, and other franchise chains, may also have to step up its policing of franchises and spend more time and money monitoring stores to prevent labor infractions.

This announcement comes as the NLRB, in an unrelated case involving Browning-Ferris Industries of California, is reviewing its standard for determining when businesses should be considered joint employers. Traditionally, to establish joint employer status, there must be a right to control. Both legally separate employers must have direction or ability to co-determine the hiring, termination, wages, hours or any other essential terms and conditions of employment. In the Browning-Ferris Industries case, the Teamsters sought to represent a bargaining unit of employees who it claimed were jointly employed by BFI and its staffing agency. The Regional Director, however, determined that the company and the staffing agency were not joint employers with respect to workers at one of the company owned recycling facilities because BFI did not exert sufficient control over the agency workers. The Teamsters sought review of this decision, which was granted by the NLRB, finding this as their opportunity to expand the test for establishing joint employer status. In a very unusual move, General Counsel Griffin filed an amicus brief urging the Board to adopt a new broader standard.

What this means for all businesses: This potential new standard for determining joint employer status may leave more employers liable for alleged labor law violations and potentially force more companies to come to the bargaining table. This possible new standard will affect every business that subcontracts or outsources any function. It seems that it may become futile to try to avoid joint employer status and, instead, companies need to investigate business practices to make sure that any other company they are in business with is doing everything as close to 100% correct as possible. In the alternative, companies may need to explore the option of eliminating the use of certain contractors completely.  At a minimum, the company should be sure to include a strong indemnification provision to hold the individual contractors or suppliers responsible for any liability suffered as a result of their noncompliance with legal responsibilities. Of course any such indemnification will be meaningful only if the other party has the financial resources to back it up.

This article is authored by attorney Lori L. Buntman 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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Posted in NLRB, NLRB, Union | No Comments »


Many of you may have attended 4th of July parties with fireworks as we celebrated our country’s birthday. While we want fireworks at a 4th of July party, you do not want them on your jobsite. But your friends in organized labor may have other ideas. At the dawn of the Obama administration in January 2009, we expected a significant push by organized labor to leverage its success in the 2008 elections to try to regain lost ground in terms of private sector union membership. Instead, the focus turned to healthcare and a number of issues that prevented the passage of laws like the Employee Free Choice Act that would have dramatically simplified union organizing. President Obama also made a mess through his recess appointments to the National Labor Relations Board which, as of the writing, are before the Supreme Court with three lower courts having held them to be unconstitutional.

Now, however, contractors need to be aware of the fact that the stars are aligned in such a way that you should expect to see some type of union activity on your jobsites over the next several months. The NLRB is fully staffed with the most pro-union majority in its history. It is aggressively moving forward to give unions additional weapons to use on jobsites such as bannering, street theater and the ever popular large inflatable rat. The NLRB has also given unions almost complete control over the scope of the bargaining unit they can try to organize. It is expected that the Department of Labor will soon try to restrict the access of employers to effective legal representation in dealing with these types of issues. Since all of these administrative actions could be reversed with the election of a pro-business candidate in 2016, organized labor is ready to try to put the remaining days of the Obama administration to good use.

NOW is the time for you to learn about the variety of tactics unions might employ, where and how they might be utilized and what you can do to prepare for them. On Tuesday July 15, 2014 from 7:00am – 8:30am I will be presenting an interactive seminar on this topic. This session is designed for field superintendents, project managers and company executives. Don’t be caught unprepared!


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Posted in bannering, Construction, Construction Contracts, NLRB, NLRB, Union | No Comments »

For those of you wondering, it is not okay to push a union official down the stairs of your jobsite trailer, which is precisely what a superintendent working for an Arizona building contractor did.  In the matter of Norquay Construction, Inc., the National Labor Relations Board held that such an assault interfered with the protection afforded to unions under the National Labor Relations Act (“NLRA”), which protection covers action taken in furtherance of enforcing or protecting area labor rights.  As a result of such interference, the National Labor Relations Board held the contractor liable to the assaulted union agent for lost pay and medical expenses resulting from the superintendent’s assault. 

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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Posted in Construction, Union | No Comments »

The NLRB – The U.S. Senate – The Rolling Stones

You may very well be wondering what these three topics have in common.  While watching the news yesterday regarding the debates in the Senate about the “nuclear option” threatened by Senator Harry Reid, which would have changed long-standing rules of the Senate to permit presidential nominations for positions in the administration to be passed by a simple majority rather than needing six votes to survive a threatened filibuster, I was reminded of a Rolling Stones song.  In 1968, noted contemporary philosophers Mick Jagger and Keith Richards penned the words to what was to become one of the Rolling Stones’ most popular songs, “You Can’t Always Get What You Want.”  If you are an aging baby boomer like me, the chorus of that song is hardwired into your brain, especially these lines:

“No, you can’t always get what you want

But if you try sometime, you just might find

You get what you need.”

As most people that follow labor law at all know by now, there has been a controversy for the last several years regarding the composition of the National Labor Relations Board and the validity of several “recess appointments” made by President Obama to the National Labor Relations Board in January 2012.  (For additional information, see NLRB DC Circuit.)

For the last several months, the NLRB, which is supposed to have five members (traditionally three from the President’s party and two from the other party), has been operating with just three Democrat members, Chairman Mark Gaston Pearce and recess appointees Sharon Block and Richard Griffin.  Senate Republicans were incensed that even after the recess appointments had been declared unconstitutional by the D.C. Circuit Court of Appeals, President Obama re-nominated Block and Griffin to the NLRB.  It appeared that a line in the sand had been drawn over these nominees, which brought Senator Reid to the point of threatening the “nuclear option.”

As a result of lengthy discussions over the past two days, a compromise was reached which allowed pending nominations, including that of Thomas Perez (for Secretary of Labor) to move ahead for votes, and the submission of replacement nominations for Block and Griffin.  It now appears that the nominations of Chairman Pearce and Republicans Harry Johnson and Phillip Miscimarra, which had been previously voted out of Committee, will move forward together with replacement nominees, Democrats Kent Hirozawa (currently Chief Counsel to Chairman Pearce) and Nancy Schiffer (a former AFL-CIO General Counsel).

While many in the employer community seemed perfectly happy with the idea of a completely nonfunctioning National Labor Relations Board, at least a full Board, comprised of both Democrats and Republicans, will be far better than a Board with three Democrats.  Even though the Obama Administration, through the Democrat members of the NLRB, will be able to achieve some, if not all, of its administrative agenda, there will at least be dissenting opinions to NLRB actions, which will assist in clarifying the issues for any reviewing court.

This brings me back to the words of Mick Jagger and Keith Richards.  As a result of the compromises, no one may have gotten what they wanted, but they may have gotten what they needed.

This article is authored by attorney Tom Davies 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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Posted in Labor & Employment, NLRB | No Comments »

National Labor Relations Board in the DC Circuit

The National Labor Relations Board has not been faring well in the DC Circuit recently. In January, in the Noel Canning case, the Court held that the President’s recess appointments to the NLRB were unconstitutional.  In May, the DC Circuit vacated the NLRB’s Notice Posting Rule, the implementation of which had been temporarily blocked.  Another challenge to the rule is pending in the Fourth Circuit.

Here is a link to the Decision –


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Homebuilder Battles NLRB over Arbitration Clause

National homebuilder, D.R. Horton, Inc. is embroiled in a legal battle with the National Labor Relations Board (“NLRB”) over whether a provision in its employment contracts requiring its employees to engage in a mandatory arbitration agreement that waived the employees’ rights to participate in class or collective actions violated the employees federally protected right to engage in “concerted activity” for their mutual aid and protection.

The dispute arose when one of the homebuilder’s superintendents filed a charge with the NLRB alleging that he and other employees were prevented from pursuing claims that they were misclassified as exempt workers under the Fair Labor Standards Act by virtue of the homebuilder’s allegedly illegal dispute resolution procedure that blocked employees from pursuing class or colletive actions in court or in arbitration.  The NLRB sustained the charge and the case was appealed all the up to the U.S. Court of Appeals for the Fifth Circuit.

The case was argued before the Fifth Circuit earlier this month.  The NLRB’s attorney argued that the National Labor Relations Act (“NLRA”) gives employees the right to engage in concerted activity for their mutual aid and protection and that the homebuilder’s broadly worded arbitration policy interfered with the opportunity of employees to obtain class or collective litigation of their employment-related claims in addition to their right to assert claims in a concerted manner.  The homebuilder’s attorney argued that never before has the NLRB found that the NLRA gives employees the right to engage in class or collective litigation and that the NLRA contains “no clear congressional mandate” making the dispute resolution procedure used by the homebuilder illegal.  According to the homebuilder’s attorney, vague references to concerted activity in NLRB decisions does not demonstrate a clear congressional mandate under the NLRA that would justify the court in denying the enforcement of an otherwise lawful arbitration agreement.  A decision is awaited.

The Fifth Circuit’s rulings could have a significant impact on how builders and employers in general draft their dispute resolution provisions.

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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Posted in Construction, Labor & Employment, NLRB | No Comments »

A 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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Posted in Labor & Employment, NLRB, Social Media | No Comments »

            As my family, friends, coworkers, Facebook contacts, or anyone who has ever talked to me for five minutes knows, I am a die-hard fan of the Pittsburgh Steelers.  I attribute this largely to the happy circumstance of starting my professional career with the National Labor Relations Board in Pittsburgh in August 1974, just as the Steelers were beginning their incredible run of Super Bowl success that led to four championships in six years.  As a result, it was mostly with my personal and rooting interests that I reviewed the stories regarding James Harrison’s interview in the Men’s Journal Magazine and his comments about NFL Commissioner Roger Goodell.  All of the sports radio talk shows are filled with discussions regarding his remarks and the possibility that he will be suspended or fined as a result of them.  While much of the discussion has focused on the narrow question as to whether the Commissioner or the Steelers have the authority to discipline Harrison for comments made while there is no collective bargaining agreement in place and the NFL has locked out the players, I want to focus on another issue that I have not seen discussed elsewhere.

             Many people know that the National Labor Relations Act (“NLRA”) protects the rights of employees to engage in union activity, but it also protects employees if they engage in concerted activity involving matters relating to wages, hours, or other terms and conditions of employment.  In a case decided in 1965, the 7th Circuit Court of Appeals noted that an employee’s right to engage in protected concerted activity permits “some leeway for impulsive behavior.”  NLRB v. Thor Power Tool Co., 351 F.2d 584 (7th Cir. 1965).  In that case, during a tense meeting with management regarding a grievance, an employee was terminated because he called an official a “horse’s ass.”  The NLRB and the Court found that, given the context of the discussion that preceded it, the employee did not lose his protection because of the use of this obscenity.  

            In a much more recent case, Stanford Hotel, 344 NLRB 558 (2005), the NLRB found the discharge of an employee unlawful, despite the fact that he had loudly called the hotel’s general manager a “f —ing son-of-a-b—-.”  During Legal Awareness Training that we regularly conduct for our clients, I use scenarios and exercises that include these types of fact patterns to illustrate the extent of NLRA protection.

             In the Stanford case, the Board explained that the following factors will be examined to determine whether the conduct is sufficiently egregious to remove it from the protection of the Act:

                         1)         The place of the discussion;

                         2)         The subject matter of the discussion;

                         3)         The nature of the employee’s outburst; and

                         4)         Whether the outburst was in any way provoked by an employer’s unfair labor practice.

             It is generally agreed that Harrison’s anger towards Commissioner Goodell is motivated by the decision of the Commissioner last year to levy substantial fines against players who hit other players in ways the Commissioner deemed inappropriate within the context of the football game.  Harrison was certainly not alone in his displeasure with the Commissioner’s actions, and numerous players spoke up about the issue at the time and have continued to do so since.  The issue of fines for alleged workplace misconduct is unquestionably a term or condition of employment.  Harrison could also argue that his anger toward Commissioner Goodell, which comes across vividly in the excerpts of the article published so far, is motivated by the actions of the NFL in locking out its players.  Clearly, however, the public nature of Harrison’s comments would weigh against a finding that they are legally protected. 

            It is not my intent here to resolve the issue regarding the protected nature of Harrison’s comments, but to simply raise an issue that has not been previously discussed.  I would welcome any comments that others may have regarding the matter. 

This article is authored by attorney Thomas R. Davies 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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Posted in Labor & Employment | No Comments »