Category Archives: Labor Relations

Unleashing Weingarten Rights

When conducting investigations of employees in a unionized workforce, employers often feel like the lion tamer in the cage with nothing but a whip and stool between them and legal jeopardy. Unfortunately, a recent decision by the National Labor Relations Board, In re Circus Circus Casinos, may have just taken the stool away and, in doing so, created a real circus.

The National Labor Relations Act has been interpreted to allow employees to request preferred union representation for investigatory interviews that may reasonably lead to discipline. Up until [this] Circus, this right was understood to arise only if an employee requested representation. Moreover, it was well confirmed that the employee’s selection of a representative could not be used to delay an employer’s investigation. In fact, as recently as September 2017, when the NLRB released to the public an advice memorandum addressing Weingarten rights, in which it noted that:

“[I]f the employee requests an unavailable representative, it is the employee’s obligation to request an alternative available representative in order to remain under Weingarten’s protections; the employer is not required to postpone the interview, secure an alternate representative, or otherwise accommodate the employee’s specific request.”

Nonetheless, in Circus Circus the panel broke with these seemingly settled principles.

So, what led to the three-ring circus of Circus Circus? First, employer directed an engineering department temporary employee to be fitted with a respirator to comply with OSHA regulations. Citing anxiety, the employee advised the third party that was fitting the employee that he wanted to speak with a doctor. The third party denied this request and advised the employer that the temporary employee refused to cooperate.  The employer suspended the employee pending an investigation.

Subsequently, the employer’s HR representative spoke with the employee, informing him that he was to report for a “due process” meeting the next day. The HR representative advised the employee “that if he wanted Union representation that he needed to bring the steward with him.” The employee repeatedly called and left a message with his union about representation for the meeting, but he never received a return call.

The day of the meeting, the employee appeared at the employer’s facility, walking past where the union steward worked. The employee, however, did not attempt to speak with the shop steward. Instead, the employee looked around the HR representative’s office before entering, allegedly searching for a union representative. Nevertheless, no union representative was there. When the meeting began, everyone agreed that the employee stated:

“I called the Union three times [and] nobody showed up, I’m here without representation.”

After the meeting, the employee was separated. The employee would later claim that he told the employer’s representative that he wanted the union at the meeting and, moreover, the representative told him he did not need anyone present because the matter was not a disciplinary action. The employer’s representative denied these allegations.

Focusing on the employee’s statement that he attempted to reach the union, the NLRB panel, in a 2-1 decision concluded that this statement was, in fact, a request for representation. Alluding to the fact that no magic words were needed to invoke Weingarten rights, the majority decided that the employee’s statement about his unsuccessful attempt to reach a representative—standing alone—was sufficient to invoke Weingarten rights. The NLRB affirmed the administrative law judge’s order of reinstatement and backpay.

Although Circus Circus Casinos has since appealed this decision, employers will still be well-served to tread carefully when conducting employee investigations in the interim—lest they wake the lion. As such, employers may want to consider any statement by a union employee referencing their union, their steward, a witness, or a representative as invoking Weingarten rights. A failure to do so may put an employer at risk of taking a nasty bite in the form of reinstatement or back pay.

Attorney John Getty* assisted in preparing this blog post.
*Admitted in Louisiana and Georgia

A NLRB Christmas Story

If the NLRB is Santa, then Santa just left employers a Millennium Falcon under the Christmas tree. One day after issuing two well-received pro-employer decisions, the NLRB overruled one of its most detested decisions from the last eight years, E.I. du Pont de Nemours, 364 NLRB No. 113 (2016), that broke from long-standing board precedent and dramatically altered what constitutes a “change” in the terms and conditions of employment and thus, when an employer is required to bargain with a union. In the DuPont decision, the Board held that bargaining would always be required, even if the parties had not yet agreed to a contract, in every case where the employer’s actions involved some type of “discretion.”

However, on December 15, 2017, in Raytheon Network Centric Systems, 365 NLRB No. 161, the Board continued its Fast and Furious dismantling of many of the more controversial decisions issued during the Obama administration, by rejecting DuPont and returning to what had been long-standing board precedent. The majority of the Board opined:

We conclude that the Board majority’s decision in DuPont is fundamentally flawed, and for the reasons expressed more fully below, we overrule it today. DuPont is inconsistent with Section 8(a)(5), it distorts the long-understood, commonsense understanding of what constitutes a “change,” and it contradicts well established Board and court precedent. In addition, we believe DuPont cannot be reconciled with the Board’s responsibility to foster stable bargaining relationships. We further conclude that it is appropriate to apply our decision retroactively, including in the instant case.

*  *  *

In sum, and for the reasons stated above, we overrule DuPont as well as Beverly I and Register-Guard, and we reinstate Shell Oil, Westinghouse, Winn-Dixie Stores, Beverly II, Capitol Ford, and the Courier-Journal cases. Henceforth, regardless of the circumstances under which a past practice developed—i.e., whether or not the past practice developed under a collective-bargaining agreement containing a management-rights clause authorizing unilateral employer action—an employer’s past practice constitutes a term and condition of employment that permits the employer to take actions unilaterally that do not materially vary in kind or degree from what has been customary in the past. We emphasize, however, that our holding has no effect on the duty of employers, under Section 8(d) and 8(a)(5) of the Act, to bargain upon request over any and all mandatory subjects of bargaining, unless an exception to that duty applies.”

The retroactive application of this decision is of particular importance and may impact many disputes currently pending with the NLRB. This decision will also have great impact on management-union negotiations, and will provide employers greater ability to act without being required to ask for permission from a union. This is particularly true in the context of employers that do not have a collective bargaining agreement in place.

[I wonder if unions are feeling as if they are Randolph and Mortimer Duke in Trading Places, Hans Gruber in Die Hard (one of my favorite holiday flicks), or Ted Maltin in Jingle All the Way.]

In addition to overruling the DuPont decision on December 15, the Board also overruled Specialty Healthcare & Rehabilitation Center of Mobile, 357 NLRB 934 (2011) enfd. sub nom. Kindred Nursing Centers East, LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013). The Specialty Healthcare decision made it easier for unions to organize so-called “micro-units.”  With PCC Structurals, 365 NLRB No. 160, the Board reinstated its pre-Specialty Healthcare, community-of-interest approach for determining  “whether a proposed bargaining unit constitutes an appropriate unit for collective bargaining when the employer contends that the smallest appropriate unit must include additional employees.”

We are well into Hanukkah and only a few days before Christmas, let’s hope that the NLRB continues to shower employers with gifts this holiday season and that this Miracle on 34th Street continues.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

The NLRB’s Holiday Gift to Employers

The new General Counsel for the NLRB recently issued a memorandum explaining that the NLRB would be moving swiftly to review several of the more controversial, and arguably anti-employer, decisions issued in the last eight years.  On December 14, thirteen days later, on the third night of Hanukkah, nine days before Festivus, and less than two weeks before Christmas, the NLRB took the first steps towards fulfilling this promise, when it issued two employer-friendly decisions that overturned two of the most controversial rulings of the NLRB under the Obama administration.  Happy Holidays, Employers!

First, in Hy-Brand Contractors the NLRB overturned the Browning-Ferris joint employer standard. When issued, the Browning-Ferris decision was shocking as it changed years of NLRB precedent. Through the Hy-Brand decision, NLRB has returned to the long standing test for joint employment that focuses on whether joint control is exercised (rather than merely reserved), whether such control has a “direct and immediate” impact on employment terms (rather than a merely indirect impact), and whether such control is not merely “limited and routine.”

Next, in Boeing Co. & Society of Professional Engineering Employees in Aerospace, the NLRB overturned the somewhat paternalistic Lutheran Heritage standard that has been used to invalidate policies in employee handbooks if it was determined by the NLRB that employees could “reasonably construe” the policy as barring them from exercising their rights under the NLRA. In application, the Lutheran Heritage standard was often applied in a way that caused employers to opine that the NLRB thought employees were lacking in intellect or common sense if they were to construe the policies as chilling or prohibiting their rights.  On pages 3-4 of the Boeing opinion, the NLRB states that the new standard will be as follows:

Under the standard we adopt today, when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule. We emphasize that the Board will conduct this evaluation, consistent with the Board’s “duty to strike the proper balance between . . . asserted business justifications and the invasion of employee rights in light of the Act and its policy,” focusing on the perspective of employees, which is consistent with Section 8(a)(1).

As the result of this balancing, in this and future cases, the Board will delineate three categories of employment policies, rules and handbook provisions (hereinafter referred to as “rules”):

  • Category 1 will include rules that the Board designates as lawful to maintain, either because (i) the rule, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. Examples of Category 1 rules are the no-camera requirement in this case, the “harmonious interactions and relationships” rule that was at issue in William Beaumont Hospital, and other rules requiring employees to abide by basic standards of civility.
  • Category 2 will include rules that warrant individualized scrutiny in each case as to whether the rule would prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRA-protected conduct is outweighed by legitimate justifications.
  • Category 3 will include rules that the Board will designate as unlawful to maintain because they would prohibit or limit NLRA-protected conduct, and the adverse impact on NLRA rights is not outweighed by justifications associated with the rule. An example of a Category 3 rule would be a rule that prohibits employees from discussing wages or benefits with one another.

Although this standard is somewhat complicated, it should provide employers more confidence in their ability to have appropriate policies for their workplaces, including those that have business justifications which outweigh potential adverse impacts on employees’ protected rights.

In addition to the foregoing, on December 12, 2017, the NLRB issued a Request for Information Regarding Representation Election Regulations and in doing so provided employers with hope that the 2014 “quickie election rule” may eventually be a rule of the past.

Hopefully, the holiday gifts from the NLRB continue through the season.

This post was co-authored by Gail E. Farb and Jennifer Fowler-Hermes.

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Jimmy John’s Takes on Disloyal Employees and the NLRB and Wins

Doling out a refreshing victory, the U.S. Court of Appeals for the Eighth Circuit sided with Jimmy John’s in a protected, concerted activity case brought under the National Labor Relations Act (“NLRA”). On July 3, the full en banc court reversed an earlier decision of a three-member panel of the court that had affirmed a National Labor Relations Board (“NLRB”) ruling for the employees. Unless appealed to the Supreme Court, this decision brings to an end a torturous legal saga lasting over six years.

This case was set in motion in October 2010 when an Industrial Workers of the World (IWW)-affiliated union lost a union election to represent Jimmy John’s employees at ten franchised stores in the Minneapolis-St. Paul area, owned and operated by MikLin Enterprises. After the unsuccessful election, several union supporters continued to pressure the franchisee’s management to adopt workplace policy changes, including the adoption of paid sick leave. The disgruntled sandwich-makers claimed that current attendance policies forced them to work while sick.

The dispute escalated when six of these employees placed posters in and around the restaurants, calling attention to their claims. The posters featured two identical side-by-side pictures of a Jimmy John’s sandwich. One was labeled as being made by a “sick” employee and the other by a “healthy” employee. The caption below the picture read “Can’t tell the difference?” and was accompanied by a message criticizing the employer’s attendance policies. The employer terminated the six employees responsible for these posters.

The employees challenged their terminations claiming that the employer’s actions were in retaliation for concerted protected activity under the NLRA. Both the NLRB and the three-member panel of the Eighth Circuit agreed. However, the full panel of the Eighth Circuit ruled that the terminations were lawful. Specifically, it found that the claims about food safety were false and misleading and therefore, sufficiently “disloyal” to place the actions of the six employees outside of the protections of the NLRA.

The decision is heartening for employers, as many recent NLRB decisions have been overly protective of worker actions that were calculated to harm a company’s reputation.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The United States against the United States? A Government Flip-Flop That May Help Employers

On June 16, 2017, the U.S. Department of Justice did an about-face when it filed an amicus brief with the Supreme Court of the United States in an important labor arbitration case, NLRB v. Murphy Oil USA. The Murphy case presents the question of whether arbitration agreements can restrict employees from participating in class or collective actions. The brief filed by the Department of Justice argues that employers can impose such restrictions. See the full brief here.

Arbitration agreements have traditionally required employees to submit their claims to arbitration rather than through the court system. The trend over the last several years is for employers to include class action or collective proceeding waivers in such agreements. Such provisions are believed to reduce litigation costs associated with class and collective actions (which are on the rise). In response to this trend, the NLRB ruled that such waivers violate the NLRA when they are a condition of employment.

Several of the NLRB’s cases regarding such arbitration agreements have been appealed to the circuit courts, resulting in contradictory decisions on this issue. The Second, Fifth, and Eighth Circuits held that such arbitration agreements are enforceable, with the Seventh Circuit finding that these agreements violate the NLRA. There are similar challenges to agreements being made in other circuits, including the Eleventh Circuit. Based on the split of authority on this issue, the Supreme Court accepted review of the case argued before the Fifth Circuit Court of Appeals.

When the NLRB submitted its petition for writ of certiorari in Murphy, the Department of Justice supported the NLRB and its argument that the ability for an employee to engage in concerted activities is the “core substantive right” of the NLRA, and prohibiting class and collective actions infringe on that right. However, in its new brief, the Department of Justice argues that the NLRB failed to give adequate weight to the congressional policy of favoring arbitration agreements. This change of heart by the Department of Justice creates the potential for an unusual situation. Typically, when the Solicitor General’s office files an amicus brief, a lawyer for the government will present oral argument before the court on that side of the case. Given that the NLRB sits on the other side of the case, the upcoming oral arguments may consist of a lawyer for the United States arguing against a lawyer for a U.S. agency: the United States arguing against the United States.

Jennifer Fowler-Hermes
jfowler-hermes@williamsparker.com
(941) 552-2558

Offensive Facebook Posts May Be Protected Speech

Human resources experts often recommend a detailed analysis before disciplining an employee for offensive statements. On April 21, 2017, the Second Circuit Court of Appeals highlighted this requirement and forced an employer to reinstate an employee who had been fired for posting highly offensive comments about his supervisor. Although this case, National Labor Relations Board v. Pier Sixty LLC, 2017 U.S. App. LEXIS 6974 (2d Cir. April 21, 2017), involved a union organizing campaign, such a dispute can arise outside the union context. It can arise in a breakroom conversation, a media interview, a picket sign, or a social media post. If the content involves protected speech, such as criticism of the terms and conditions of the employee’s employment, and especially if the speech purports to speak on behalf of or for the benefit of others, the speech may be protected, whether or not there is a union involved.

In Pier Sixty, the employee posted on Facebook that his supervisor is a “NASTY MOTHER F—ER” and “F—his mother and his entire f—ing family!!!”  The post criticized his supervisor’s communications style, saying, “…don’t know how to talk to people!!!!”  The post also included a pro-union statement, “Vote YES for the UNION!!!!!!”

The court weighed the protections (here, concerted activity) versus how abusive or “opprobrious” the comments were. The court reviewed the context of the statements, including that the employer was found to have permitted past vulgarity and to have engaged in other efforts to impede unionizing efforts. Commenting that these posts fall on the “outer bounds” of protected activity, the court declared the posts to be within the bounds of protected concerted activity and required the employer to bring the discharged employee back to work.

Employers should ensure that workplace rules are consistently enforced and that the reason for discharge does not involve and does not appear to involve a protected reason. Employers should be prepared to articulate and, if required, prove the lawful reason for discharge rather than relying on at-will status.

Kimberly Page Walker
kwalker@williamsparker.com
(941) 329-6628

The Right-to-Work Movement Gains Momentum

On January 7, 2017, Kentucky became the 27th right-to-work state. Right-to-work laws make it illegal for unions or employers to compel workers to join a union and pay dues as a condition of employment. Florida was one of the first states with a right-to-work law pursuant to a constitutional provision passed in the 1940s. In Florida, and other right-to-work states, even if a worker is included within a bargaining unit of a unionized workplace and legally represented by the union, the employee still has an individual choice on whether to join the union and pay dues. Unions, of course, do not care for such laws or those states that adopt them.

Right-to-work initiatives have picked up steam in recent years with Indiana becoming the 23rd right-to-work state in 2012, followed by Michigan, Wisconsin, West Virginia, and now Kentucky. As a consequence of Republican victories in November 2016 it is anticipated that more states will climb on the right-to-work bandwagon —such laws are pending in Illinois, Missouri, New Hampshire and New Jersey. The driver for the expansion of right-to-work legislation is economics. Although right-to-work laws do not a bar unionization, industry and business typically view right-to-work states as more favorable economically, believing that there is a better opportunity to avoid unionization and the constraints that typically accompany union contracts.

A recent highly controversial issue associated with right-to-work is whether a political subdivision of a state, such as a county or municipality, may enact its own right-to-work law in the absence of state legislation.  A federal appellate court, the 6th Circuit Court of Appeals, just ruled that political subdivisions  of a state are legally permitted to enact their own right-to-work laws. On the other hand, a federal trial court in the Northern District of Illinois (part of the federal 7th  Circuit Court of Appeals ) recently ruled the other way.  It is likely this issue will eventually be addressed and resolved by the U.S. Supreme Court that will hopefully establish a uniform rule on this issue.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

The Clock Is Ticking…Private Sector Employers Face June 30 Deadline to Avoid New Reporting Requirements

The Department of Labor recently issued a rule imposing new reporting requirements on private sector employers who engage attorneys or consultants to persuade employees concerning the right to organize and collectively bargain. Employers who have entered into an agreement for labor relations services before July 1, 2016 are exempt from the reporting requirement, even if the need for services arises after July 1.

The prior “persuader” rule requires both employers and labor relations consultants (including attorneys) to report to the DOL only when they engage in persuasive communications directly with employees regarding the right to organize a union or bargain collectively. The rule’s long-standing “advice exemption” has generally exempted consultants and attorneys from the reporting requirements when they have simply provided “behind the scenes” guidance to employers (e.g., drafting speeches and letters directed to employees by management to dissuade employees from unionizing).

In the new rule, which takes effect July 1, 2016, the DOL narrows the “advice exemption” by broadening the reporting requirements to include activities undertaken by a consultant or attorney, even when there is no direct contact or communication with employees, where the object of the activity is to persuade employees concerning the right to organize and collectively bargain.

The new DOL rule has triggered numerous legal challenges throughout the country by employers and business associations. One of the principal objections is that the new reporting requirements essentially eviscerate the attorney-client privilege between the employer and its labor relations attorney.

Contact any of our labor and employment attorneys to discuss this time-sensitive issue.

John M. Hament
jhament@williamsparker.com
(941) 552-2555

Gail E. Farb
gfarb@williamsparker.com
(941) 552-2557