Category Archives: NLRB

NLRB Poster Rule Struck Down, Again

The National Labor Relations Board (NLRB) just can’t win for losing these days. First, the Supreme Court decided that a two-member “rump” (of the usual five-member Board) was not authorized to conduct NLRB business. This threw about 600 decisions into doubt, as they were issued after the terms of the other three members had expired. Next, federal courts held up the NLRB’s efforts to make rules that would require employers to post a notice of union rights and would speed up union elections. Then, the D.C. Circuit Court of Appeals decided that President Obama’s effort to solve that two-member problem by making three recess appointments to the Board had failed, and that the Board still lacked the necessary quorum (at least three members) required to do any business.

The Obama administration recently appealed that last decision to the Supreme Court, but the D.C. Circuit wasn’t finished yet: Yesterday, that Court struck down the NLRB’s posting requirement as a violation of employer free speech rights. This requirement had been on hold while the Court heard arguments and made its decision, so the opinion hasn’t changed the status quo. It will take a Supreme Court opinion (in favor of the NLRB, quite unlikely) to get these posters up in the workplace.

The Court of Appeals opinion focused mainly on the Board’s methods of enforcing the posting requirement. The Court found that the Board didn’t have the authority to penalize the employer for failing or refusing to put up the poster (by, for example, making failure to post an unfair labor practice, creating a legal presumption that failure to post showed an anti-union bias, or extending the statute of limitations for employees to file a charge with the NLRB if their workplace had no poster informing them of their rights). The basis for this holding was employer free speech. The NLRB is not allowed to penalize employers for saying what they wish about unions, as long as no coercion or threats are involved. By the same token, the Court reasoned, the NLRB can’t force employers to “speak” by punishing them for failing to hang the poster.

It’s interesting to me how much firepower has been levied against the NLRB lately, especially about something so basic as a workplace rights poster. Employers are already required to hang posters about health and safety, discrimination laws, the minimum wage, and more, so I would have thought this type of requirement wouldn’t raise much employer ire. Because they are such a routine feature of the workplace landscape, most employees ignore them, in my experience. So why all the uproar about adding one more poster to the bulletin board?

Based on all of the recent activity against the NLRB, as well as the fights in the past couple of years over public employee unions, right to work laws, collective bargaining rights, and so on, it seems clear that the opposition to the NLRB is about more than posters. These lawsuits haven’t been brought by individual employers, but by large employer advocacy groups, such as the National Association of Manufacturers and the Chamber of Commerce. This agency — and the rights it enforces — are under sustained attack by business groups. The Board has been prevented from issuing regulations, issuing opinions, or stepping in to resolve disputes over elections. The recess appointments and two-member rump strategy were efforts to continue doing business despite Congress’s continued failure to confirm new Board members. President Obama has responded by nominating a bipartisan package of five members (the Board is bipartisan by design), but Congress still hasn’t taken action. With insufficient members and such fierce opposition, it’s unclear at this point what the Board can do to get back on its feet.

Authority of the NLRB In Question . . . Again

Last week, the federal Court of Appeals for the D.C. Circuit decided an appeal of an unfair labor practices case from the National Labor Relations Board (NLRB). (The case is Noel Canning v. NLRB.) The facts of the case are not complicated: An employer and a union had a dispute as to whether the two had reached an agreement, in their final negotiating session, about how much of a proposed pay raise would go into the pension fund. The employer claimed no agreement had been reached, and it rejected the union’s vote on the matter. The union claimed an agreement had been reached, and that the employer committed an unfair labor practice by refusing to treat it as a collective bargaining agreement.

As to those facts, the union won the appeal. But the rest of the opinion eclipsed the victory. The Court found that three of the NLRB’s five members were appointed in violation of the Constitution. If this interpretation is adopted by the Supreme Court, it means not only that the Board lacks a quorum and has no authority to do anything (the Supreme Court decided that two members won’t cut it in 2010); it probably also means the NLRB won’t have enough Board members to act any time soon — unless and until the Democrats get a filibuster-proof majority in the Senate.

Why? The Board has been extremely active in trying to enforce and expand employee rights of late — and one side of the Congressional aisle is not happy about it. As I’ve posted recently, the NRLB has made a recent priority of enforcing employee rights to speak to each other about the terms and conditions of employment, whether on social media sites or during workplace investigations that the employer would prefer to keep confidential. The NLRB also tried to issue a couple of regulations that would have benefited employees, one to require employers to post a notice of labor rights and the other to speed up union elections. Both regulations were stopped by lawsuits filed by pro-business groups. How do Congressional Republicans feel about the NLRB? Here’s John Boehner’s view: “The Obama administration has consistently used the NLRB to impose regulations that hurt our economy by fostering uncertainty in the workplace and telling businesses where they can and cannot create jobs.” In fact, most of the Republican Senators and Speaker Boehner filed briefs in last week’s lawsuit, on the side of the employer.

Republican opposition to President Obama’s nominees to the Board led to the case last week. Presumably because he felt his nominees would be subjected to a filibuster (and therefore, not confirmed), the President appointed them pursuant to the recess appointments clause of the Constitution, which doesn’t require Senate confirmation. (This has become common practice by frustrated presidents of late, both Democrat and Republican.) However, the Court of Appeals found that the President’s appointments didn’t meet the constitutional requirements. First of all, the Court found that such appointments may be made only during “the” recess — in other words, the break between Senate sessions — not during any recess in Senate business. Because the President appointed his nominees during an “intrasession” recess, those appointments were not truly recess appointments. Second, the Court found that the recess appointment power may be used only to fill vacancies that arise during that same recess, which was not the case for the three seats the nominees were appointed to fill. This second requirement will limit the recess appointment power to near extinction.

This is one Court of Appeals’ opinion. Notably, the Board itself has said that it “respectfully disagrees” with the decision, and will continue to perform its duties. It will take a Supreme Court decision to decide the issue once and for all. But if the Court upholds this decision, recess appointments will be much less common. Which means nominees will get to their posts only if confirmed by the Senate, where filibusters and threats of same have held up even routine appointments. If you were thinking the change to the Senate filibuster rules would solve this problem, it won’t: Despite being called “filibuster reform,” those rules don’t do much to the filibuster. They speed up debate on lower-level nominees, but the debate has to start before it can gain steam — and the rules still require a cloture vote (60 votes or more) for that.

Confidentiality of Workplace Investigations

Workplace complaints and investigations can polarize a workplace. If your company has to investigate sexual harassment, bullying, or other serious problems, chances are good that employees will be talking about it and choosing sides. Of course, some of this is inevitable: We’re only human, right? But employers often try to minimize the fallout — in lost productivity, damaged reputations, or even changed stories and manufactured evidence — by requiring confidentiality. Employees who are interviewed as part of an investigation are routinely told that they may not discuss the investigation with other employees and may not reveal the facts they learn during the interview.

In the past few months, however, a couple of government agencies have cautioned employers not to go too far in trying to stop employee discussions. First, the National Labor Relations Board (NLRB) weighed in. In the case of Banner Estrella Medical Center, an HR consultant asked employees who had made a complaint not to discuss the matter with coworkers while the investigation was ongoing. The NLRB found that this request violated employees’ rights to discuss the terms and conditions of employment with each other. Prohibiting employee discussions of an ongoing investigation is allowed only if the employer can show that it has a legitimate business justification outweighing the employees’ rights. For example, if a witness needed protection, evidence was in danger of being destroyed, testimony was in danger of being fabricated, or the employer needed to prevent a cover-up, the NLRB indicated that these facts could justify a confidentiality requirement. However, the requirement must be based on facts specific to the investigation, rather than a general, blanket approach to all investigations.

The Equal Employment Opportunity Commission (EEOC) has also questioned broad confidentiality requirements. As Lorene Schaefer reports in a blog post, the Buffalo, New York, office of the EEOC sent an employer a letter about its confidentiality policy. The EEOC stated that threatening to discipline or fire employees who discussed a sexual harassment complaint with anyone was illegal retaliation. Discussing harassment complaints with others is a form of “protected opposition” to illegal practices under Title VII. The letter also indicated that employees subject to such a confidentiality rule might believe they could be disciplined or fired for discussing harassment with the EEOC.

So what should employers do, in light of these opinions? It appears that blanket “gag orders” might create some risk going forward. However, a more limited confidentiality rule (for example, one that asks employees not to discuss what is said in the actual investigative interviews, as opposed to the underlying facts) could still pass muster. And, if you have specific concerns, based on the facts of the case, about falsification of evidence or witnesses talking to each other to “get their stories straight,” the NLRB opinion would still allow a confidentiality requirement. However, there are still a lot of grey areas here.

What’s more clear: Employers should do what they can on their end to maintain confidentiality. This includes, for example, revealing only the facts necessary to conduct a thorough interview. The accused employee must be told all of the allegations, but not every witness will need to hear the details. Employers should also take this as yet another cue to be speedy in conducting the investigation. The quicker a complaint is investigated and laid to rest, the less time there is for workplace chatter to do damage.

Can an Arbitration Agreement Waive the Right to Bring a Class Action?

For at least two decades, employers nationwide have been requiring employees to sign arbitration agreements. In a typical arbitration agreement, the employee gives up the right to sue over employment-related claims, instead agreeing to have such disputes heard in an arbitration proceeding. (Twenty years ago, the U.S. Supreme Court decided Gilmer v. Interstate/Johnson Lane, in which it made clear that employees could be required to arbitrate claims protected by statute, such as discrimination claims. Many employers and their lawyers interpreted this case as a green light to impose arbitration agreements on employees.)

Advocates for employees have brought piles of cases challenging arbitration agreements, arguing that the rules by which these agreements are judged should be different when one party has all or most of the bargaining power, as is the case in the employment relationship — particularly when the employee is required to sign the agreement as a condition of employment. (Generally, employees would prefer to proceed publicly, before a jury of their peers, with all of the protections offered by the judicial system, rather than privately, before a professional arbitrator whose decision is largely unappealable and who has a much freer hand in deciding which evidence to admit, how long the proceeding will last, and so on.) For the most part, however, these cases have failed, and arbitration agreements have been upheld. Progressive members of Congress have introduced various versions of legislation (here’s a recent example) that would prohibit the enforcement of pre-dispute arbitration agreements in consumer, civil rights, and employment cases, but have had no success to date.

But the legal landscape is different in California, where state law is more protective of employees, consumers, and others who often find themselves at the mercy of more powerful adversaries. The California Supreme Court and Courts of Appeal have continually refused to enforce arbitration agreements that overreach in favor of the employer. In the case of Armendariz v. Foundation Health Psychcare Services, the California Supreme Court held that arbitration agreements may be enforced as to statutory claims (such as discrimination) only if they comply with five rules intended to ensure that the employee’s claims receive a fair hearing. These rules, called the Armendariz factors, are:

  1. The agreement can’t limit the damages and other remedies available to employees. If, for example, an employee would be entitled to ask for punitive damages in court, such damages must also be available in arbitration.
  2. The employee must be allowed to conduct sufficient discovery — the opportunity to seek documents and information regarding the dispute. The Court noted that employers typically hold most of the relevant information in an employment dispute, and limiting the employee’s ability to collect that evidence could unfairly affect the outcome of the case.
  3. The arbitrator must issue a written decision that includes the essential findings and conclusions on which the award is based. The intent of this rule is to give employees sufficient information to appeal the decision, even though appeals of arbitration awards are quite limited.
  4. The employer must pay all costs and fees that are unique to arbitration. In other words, an employer can’t make it more expensive for an employee to arbitrate than it would have cost to bring a claim in court.
  5. The agreement must provide for neutral arbitrators.

Also unique to California is the state’s protection of an employee’s right to bring a class or collective action: a dispute brought on behalf of a group of similarly situated employees who have the same claim against the employer (for example, that the employer improperly failed to provide rest breaks or pay overtime). Many arbitration agreements preclude not only class actions in court, but also class or collective arbitration proceedings. Instead, employees agree to bring their disputes only on their own behalf as individuals.

In the case of Gentry v. Superior Court, the California Supreme Court laid out some more factors for courts to consider in deciding whether to enforce this type of agreement, including the size of the potential damages, the potential for retaliation against employees, the likelihood that employees who aren’t part of the proceedings may be ignorant of their rights, and other real-world facts that might pose an obstacle to employees seeking to vindicate their statutory rights through individual arbitration proceedings. Despite the language of an arbitration agreement, a court can order class arbitration of claims that cannot be waived under California law (such as the right to overtime) if it decides that a group proceeding would be significantly more effective at vindicating and enforcing employee rights.

California courts have continued to apply the Gentry case despite the U.S. Supreme Court’s finding, in AT&T v. Concepcion, that California courts may no longer prohibit the enforcement of class action waivers in arbitration agreements entered into by consumers. And last week, the National Labor Relations Board gave the state some support: The NLRB ruled that arbitration agreements prohibiting group actions violate the National Labor Relations Act (NLRA), even at companies where employees are not represented by a union. The NLRA protects the rights of all employees to engage in concerted activity to try to improve the terms and conditions of their employment, whether through a union or otherwise. The NLRB found that prohibiting group proceedings in arbitration violates this right.


NLRB: Non-Union Employer Shouldn’t Have Fired Employees Over Facebook Posts

As I’ve discussed in a couple of previous posts, the National Labor Relations Board (NLRB) has been very active recently in the area of social media. Not only by creating its own accounts (like a Facebook page), but also by going after employers who discipline and fire employees over their online posts. Last week, an administrative law judge for the NLRB issued the Board’s first Facebook decision. (According to the NLRB’s press release about the case, this is the first Facebook case to go all the way through a hearing and a decision by a judge.) And here’s a red flag for the majority of employers whose employees aren’t unionized: The case was against a non-union employer.

In the case, brought against the nonprofit group Hispanics United of Buffalo (HUB), a group of employees had posted comments to a coworker’s personal Facebook page (the employees used their own computers and posted on their own time; there was no allegation that they used the employer’s resources). A HUB employee, Ms. Cruz-Moore, had apparently been criticizing the performance of her coworkers. Another employee, Ms. Cole-Rivera, posted this comment on her own Facebook page about it: “Lydia Cruz a coworker feels that we don’t help our clients enough at HUB I about had it! My fellow coworkers how do u feel?” A group of coworkers responded, mostly by saying that they worked hard and that clients who complained wanted services the group didn’t provide. At some point, Ms. Cruz-Moore chimed in, asking the original poster to “stop with ur lies about me.” A few days later, five of the posters were fired. They were told that their posts constituted bullying and harassment of Ms. Cruz-Moore. (In a sad and strange twist, they were also told that Ms. Cruz-Moore had suffered a heart attack after reading the posts.)

The administrative law judge found that the firings violated the employees’ rights, under Section 7 of the National Labor Relations Act, to engage in concerted activity for the purpose of mutual aid or protection. These rights apply to union and non-union employees alike. The judge found that the Facebook discussion was “a first step towards taking group action to defend themselves” against Ms. Cruz-Moore’s criticisms, which they could reasonably have believed she was going to take to HUB management. By firing them, HUB precluded the employees from acting as a group in response to the complaints about their performance. The judge also found that HUB essentially admitted that it viewed the fired employees as a group engaged in concerted activity because it lumped them together in firing them.

According to a report issued last month by the NLRB’s General Counsel office, the NLRB has been involved recently in 14 cases involving social media. In four of the cases, the NLRB concluded that the employees’ Section 7 rights had been violated; in five cases, the NLRB found that the employees had not been engaged in protected activity, either because only one employee was involved (and therefore, there was no “concerted” activity) or because the employees were not trying to improve the terms and conditions of their employment (so their activity was not “protected”). In a handful of cases, the NLRB found that the employer’s social media policy was too broad, because employees could interpret it to prohibit protected activity, and in one case the Board found against a union that had posted a YouTube video of union organizers interrogating employees at a non-union workplace about their immigration status.