Category Archives: Unions and Labor Law

Eighth Circuit Court of Appeals Reinstates NFL’s Punishment of Adrian Peterson

The NFL’s 2014 punishment of Adrian Peterson has been a rollercoaster ride.  After a district court vacated the punishment, the Eighth Circuit Court of Appeals has now reinstated it.

The NFL suspended Peterson and fined him the equivalent of six games worth of pay after he entered a plea of no contest in November 2014 to a misdemeanor charge of reckless assault against one of his children.  Peterson challenged the punishment under the NFL Players Association’s collective bargaining agreement, but an arbitrator initially upheld the punishment as valid.

Next, Peterson challenged the decision in federal court.  Because federal courts are generally very deferential to arbitration decisions, Peterson had a difficult legal standard to meet to vacate the decision.  However, in February of 2015, the district court agreed with Peterson and vacated the punishment on the grounds that:  (i) the punishment violated the collective bargaining agreement because it applied a new NFL personal conduct policy retroactively in violation of a previous decision regarding Ray Rice; and (ii) the arbitrator exceeded his authority by considering whether the punishment could be sustained under the NFL’s previous personal conduct policy.  The NFL then appealed the district court’s order to the Eight Circuit Court of Appeals.

In National Football League Players Association v. National Football League, the Eighth Circuit Court of Appeals reversed the district court and reinstated the NFL’s punishment of Peterson as valid.  No. 15-1438 (8th Cir. August 4, 2016).  In reaching this decision, the court first reasoned that the district court’s disagreement with the arbitrator’s conclusion regarding retroactive application of the new NFL policy was not a valid basis to vacate the arbitrator’s decision.  Rather, the arbitrator’s decision needed to be upheld so long as the arbitrator was “at least arguably construing or applying the contract, including the law of the shop.”  Because the arbitrator “undoubtedly construed” the previous Ray Rice decision, the Eighth Circuit held that this requirement was satisfied and that the arbitrator’s decision on the issue should not be second-guessed by the courts.

The Eighth Circuit also disagreed that the arbitrator exceeded his authority by considering whether the discipline could be upheld under the NFL’s old personal conduct policy.  With respect to this issue, the NFL Players Association argued that the only question presented to the arbitrator was whether the NFL could retroactively apply its new policy to Peterson.  The Eighth Circuit pointed out, however, that the NFL characterized the issue more broadly as “Is the discipline appropriate?”  The NFL Players Association also raised arguments during the arbitration concerning whether the discipline was permitted under the NFL’s old policy.  As a result, the Eighth Circuit concluded that the arbitrator was at least arguably acting within the scope of his authority when he considered the previous policy, so that his decision must be upheld.

Takeaway:  The Eighth Circuit’s decision concerning Adrian Peterson is a reminder that courts are very deferential to arbitration decisions and that it is generally difficult to vacate an arbitration decision in federal court.

When is an Employer a “Successor Employer” or a “Perfectly Clear Successor Employer”?

When an employer purchases another company or facility with a workforce covered by a collective bargaining agreement, it should pay careful attention to whether it is either a “successor employer” or a “perfectly clear successor employer” under the National Labor Relations Act (NLRA).  Here’s what employers need to know about these two different statuses:

Successor Employers:  A “successor employer” is a new employer that continues its predecessor’s business in substantially unchanged form and hires employees of the predecessor as a majority of its workforce.  An employer who qualifies as a successor employer has an obligation to bargain with the union that represented the employees while they were employed by the predecessor.  Because it is not usually evident whether the union will retain majority status in the new workforce, however, the duty to bargain with the union does not normally arise until after the successor establishes the initial terms and conditions of employment.  This means that a new employer who is merely a “successor employer” typically has an opportunity to change the terms and conditions of employment before the duty to bargain with the union arises.

Perfectly Clear Successor Employers:  If it is “perfectly clear” that a new employer will retain all of the employees of the bargaining unit, the obligation to bargain with the union may arise before the new employer sets the initial terms and conditions of employment.  A new employer is deemed to be a “perfectly clear successor employer” if it has either: (i) actively or, by tacit inference, misled employees into believing they would all be retained without change in their wages, hours, or conditions of employment; or (ii) failed to clearly announce its intent to establish a new set of conditions of employment prior to inviting former employees to accept employment.  Thus, to avoid becoming a perfectly clear successor employer, the new employer must clearly announce its intent to establish a new set of conditions prior to, or simultaneously with, its expression of intent to retain the predecessor’s employees.

The National Labor Relations Board (NLRB) discussed these two concepts in detail in its recent decision in Nexeo Solutions, LLC, 364 NLRB No. 44 (July 18, 2016).  In Nexeo Solutions, LLC, the NLRB held that the new employer was a “perfectly clear successor employer” because it informed the predecessor’s bargaining unit employees that they would be transferred to the new business, and then, a day later, advised them that they would be retained with equivalent salaries and benefits comparable to those provided by the predecessor.  The new employer did not announce an intent to change the terms and conditions of employment until three months after these initial communications were made.  Because of the initial communications, the NLRB reasoned that the union’s majority status in the new work force was “essentially guaranteed,” and the new employer was a perfectly clear successor who had a duty to bargain before imposing new conditions of employment.

Takeaway:  To avoid becoming a “perfectly clear successor employer,” an employer involved in an acquisition should clearly announce its intent to establish a new set of terms and conditions of employment for the acquired workforce prior to, or simultaneously with, its expression of intent to retain the predecessor’s employees.

T.I.P.S. For Avoiding Unfair Labor Practice Charges under the NLRA

There are four problematic behaviors, which employers should avoid to stay in compliance with the National Labor Relations Act (NLRA).  These behaviors are commonly abbreviated as T.I.P.S. and consist of the following:

  • Threats: Employers may violate the NLRA if they make threats against employees who support unions or unionization efforts.  Impermissible threats may take a variety of forms, such as threatening to close a facility, to cut employees’ pay, or to fire employees.
  • Interrogation: Employers may violate the NLRA if they interrogate employees about union activities or unionization efforts.  For example, employers should not ask employees which of their co-workers are union sympathizers or whether they are voting in support of the union.
  • Promises: Employers may violate the NLRA if they promise benefits to employees who oppose a union.  For example, an employer should not offer a one-time bonus to any employee who votes against a union.
  • Surveillance/Spying: Employers may violate the NLRA if they spy on employees or conduct surveillance regarding the employees’ union activities.  For example, employers should not attempt to record employee meetings about forming a union or photograph employees who are engaging in union activity.

Takeaway:  Employers can reduce the risk of unfair labor practice charges by following these T.I.P.S.

7th Circuit Holds that Class-Waiver Arbitration Agreements Violate the NLRA

The 7th Circuit recently disagreed with other federal courts of appeals and sided with the National Labor Relations Board (NLRB) by holding that class-waiver provisions in arbitration agreements violate the National Labor Relations Act (NLRA).  The ruling creates a circuit split that can only be resolved by the U.S. Supreme Court.

Whether arbitration agreements with class-waiver provisions violate the NLRA has been sharply disputed. The NLRB has consistently held that such limitations on an employee’s ability to file a class or collective action violate the NLRA, even in the face of federal judicial decisions holding otherwise.  The majority of other circuit courts that have addressed the issue have rejected the NLRA’s reasoning. See e.g., Murphy Oil USA, Inc. v. NLRB, 808 F.3d 1013, 1018 (5th Cir. 2015); Sutherland v. Ernst & Young LLP, 726 F.3d 290, 297 n.8 (2d Cir. 2013); Owen v. Bristol Care, Inc., 702 F.3d 1050, 1052–54 (8th Cir. 2013).

The 7th Circuit’s decision in Lewis v. Epic Systems Corporation is a departure from the approach taken by other federal circuit courts.  No. 15-2997 (7th Cir. May 26, 2016).  In Lewis, the 7th Circuit based its decision on Section 7 of the NLRA, which protects the rights of employees to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection . . . .”  29 U.S.C. § 157.  The court held that Section 7 protects the rights of employees to engage in class, representative, and collective legal proceedings because Congress was aware of those procedures when it enacted the NLRA and because “[t]he plain language of Section 7 encompasses them . . . .”  Since the arbitration agreement did not permit employees to utilize class or collective procedures, the court concluded that the agreement violated the NLRA and was not enforceable under the Federal Arbitration Act.

Takeaway: The 7th Circuit’s decision in Lewis provides support for the NLRB’s continued efforts to challenge class-waiver arbitration agreements, and it creates a circuit split regarding the enforceability of those agreements.

Prohibitions Against Employee Recording and the NLRB

A recent case involving Whole Foods demonstrates the ever-increasing importance to the National Labor and Relations Board of protecting Section 7 concerted activity under the National Labor Relations Act.  Section 7 protects activities of employees when exercising their rights under the National Labor Relations Act to collective action.  Both unionized and non-unionized employees are protected under Section 7.

Whole Foods had in its employee handbook a rather innocuous-sounding prohibition against employees recording conversations, phone calls, images or company meetings without a prior approval from management and without the consent of all the parties to the conversation.  The reasons given to Whole Foods for this policy was to encourage “open atmosphere” and “employee trust” – which are certainly understandable reasons.  The NLRB saw it differently.  Whole Foods Market, Inc., 363 NLRB No. 87, 2015 NLRB Lexis 949 (Dec. 24, 2015).

What the NLRB saw was a blanket prohibition with “broad and unqualified language” that could have a chilling effect upon employees’ exercise of their Section 7 activities to act in concert to protect or pursue collective bargaining rights.  In the eyes of the NLRB, the prohibitions were worded broadly enough to include protected concerted activities such as recording images and picketing, documenting unsafe working conditions and recording evidence for later use in administration or judicial proceedings.  The NLRB found there to be a “chilling” effect in such broad language and struck the handbook provisions.

Takeaway:  Employers need to be increasingly careful about provisions in their handbooks and policies that effect employees’ right to communicate among each and now to record such conversations.  Even with the best of intentions, such blanket prohibitions could have a chilling effect on the employees’ right to engage in concerted activities to protect their NLRA-guaranteed right to engage in collective action.  Employers should seek good legal counsel to refine employee communication policies so that they can meet their legitimate objectives without creating a chilling effect on Section 7 rights.

NLRB’s New Joint Employer Standard Threatens Franchisors and Employers Who Utilize Subcontracted Labor

In a recent 3-2 decision, the NLRB changed the prevailing joint employer standard under the National Labor Relations Act (NLRA) in a way that has profound implications for franchisors and employers who utilize subcontracted labor. The NLRB General Counsel first signaled its intent to change the joint employer standard last year, when it issued numerous complaints against McDonald’s as an alleged joint employer under the NLRA. Now, the NLRB has adopted that new standard.

In Browning-Ferris Industries, the NLRB addressed the question of whether Browning-Ferris Industries (“BFI”) was the joint employer of workers provided by a third-party, Leadpoint Business Services (“Leadpoint”). 362 NLRB No. 186 (NLRB Aug. 27, 2015). BFI operated a recycling facility and contracted with Leadpoint to provide workers to sort recycling materials, clean the sorting equipment, and clean the facility. The parties’ agreement specified that Leadpoint was the employer of the workers and gave Leadpoint the primary responsibility for controlling and paying the workers. Under the NLRB’s new joint employer standard, the NLRB found that BFI was a joint employer of the workers for purposes of the NLRA based on factors such as BFI’s right to reject workers provided by Leadpoint and its right to specify the tasks that need to be completed.

The Two-Part Joint Employer Standard

The NLRB’s new joint employer standard is a two-part inquiry. The first question is whether there is a common-law employment relationship with the employees in question. This question is answered by analyzing multiple common-law factors, including:

  1. The extent of control which, by the agreement, the alleged employer may exercise over the details of the work;
  2. Whether or not the one employed is engaged in a distinct occupation or business;
  3. The kind of occupation, with reference to whether, in the locality, the work is usually done under the direction of the employer or by a specialist without supervision;
  4. The skill required in the particular occupation;
  5. Whether the alleged employer or the workman supplies the instrumentalities, tools, and the place of work for the person doing the work;
  6. The length of time for which the person is employed;
  7. The method of payment, whether by the time or by the job;
  8. Whether or not the work is part of the regular business of the alleged employer;
  9. Whether or not the parties believe they are creating the relation of master and servant; and
  10. Whether the principal is or is not in business.

If a common-law employment relationship exists, the second part of the joint employer test asks “whether the putative joint employer possesses sufficient control over employees’ essential terms and conditions of employment to permit meaningful collective bargaining.”  This factor focuses on whether recognizing a joint employment relationship will serve the purposes of the NLRA, specifically its policy to encourage the practice and procedure of collective bargaining.

What Is Different From the Old Standard?

The primary differences between the NLRB’s new joint employment standard and the old one involve the degree of control required for the NLRB to determine that a company is a joint employer. Joint employment can now be found even when the alleged employer’s control is never exercised or is exercised by an intermediary.

One of the changes in the new standard is that a joint employment relationship can be found where the alleged employer only possesses the authority to control the workers – even if the alleged employer does not actually exercise that authority. The NLRB explained that:

Where a user employer reserves a contractual right to set a specific term or condition of employment for a supplier employer’s workers, it retains the ultimate authority to ensure that the term in question is administered in accordance with its preference. Even where it appears that the user, in practice, has ceded administration of a term to the supplier, the user can still compel the supplier to conform to its expectations. In such a case, a supplier’s apparently independent control over hiring, discipline, and work direction is actually exercised subject to the user’s control.

Another change is that the NLRB abandoned its previous requirement that the alleged employer’s control over the workers must be exercised “directly and immediately” instead of in a “limited and routine manner.” Instead, the NLRB held that “direct and immediate control is not required.” With respect to this issue, the NLRB explained that:

Where the user firm owns and controls the premises, dictates the essential nature of the job, and imposes the broad, operational contours of the work, and the supplier firm, pursuant to the user’s guidance, makes specific personnel decisions and administers job performance on a day-to-day basis, employees’ working conditions are a byproduct of two layers of control.

As a result, the NLRB concluded that the requisite control necessary to support a joint employer relationship may be accomplished either “directly or through an intermediary” – i.e., the supplier employer.

What Are the Implications of the New Standard?

The new joint employer standard will make it easier for employers to be found to be joint employers for purposes of either a duty to collectively bargain with a union or liability for unfair labor practices under the NLRA. The primary targets of the new standard appear to be franchisors, who may be determined to be joint employers with their franchisees, or employers who utilize subcontracted labor, who may be found to be joint employers of either temporary employees or contract workers provided by third-parties.

According to Reuters, unions describe the new joint employer standard as a “game changer” and expect that it will have a significant impact in the areas of warehousing, cleaning services, and health care. For example, one union organizer believed that the ruling would force Google to collectively bargain with warehouse and shipping employees at Google Express.

Overall, the new joint employer standard raises the risk level significantly for joint employment relationships under the NLRA. Employers should consider reviewing their practices to see if there are changes that might reduce their risk. However, whether employers should change their practices in response to the Browning-Ferris Industries decision will depend on a variety of factors and will vary based on each employer’s unique situation.

Takeaway: The NLRB’s new joint employer standard is a significant change in the law. In particular, franchisors and employers who utilize subcontracted labor should pay close attention to the new standard and how it develops in subsequent cases.

Eighth Circuit Reverses NLRB Order Requiring Reinstatement of Employee Who Threatened a Co-Worker

The Eighth Circuit Court of Appeals recently reversed a decision by the National Labor Relations Board (NLRB), which held that an employer acted unlawfully by firing an employee who threatened a co-worker.

In Nichols Aluminum LLC v. NLRB, the employer fired an employee for making a threat to a co-worker shortly after the employee participated in a union strike. Nos. 14-3001, 14-3202 (8th Cir. Aug. 13, 2015). The employee participated in a strike that began on January 20, 2012, and lasted until April 6, 2012. After the strike was over, the employer asked the participating employees to sign a no-strike pledge and agree that they would not “strike again over the same dispute.” The employer also reviewed its longstanding “zero tolerance” workplace violence policy with the employees, which prohibited “harassing, disruptive, threatening, and/or violent situations or behavior” and warned that employees could be terminated for a first offense.

About two weeks after the strike ended, the employee made a threatening “cut throat” gesture towards another co-worker. The co-worker reported that the employee gave him a “death stare” while making the gesture and that he understood it to mean “I’m going to cut your throat.” The employer fired the employee, and the employee subsequently filed an unfair labor practice charge. The charge asserted that the employer unlawfully discriminated the employee for his participation in the strike in violation of the National Labor Relations Act (NLRA).

Initially, the administrative law judge (ALJ) found the employee’s charge to be without merit, reasoning that the employer “reasonably construed” the employee’s behavior as a serious threat. The NLRB disagreed, however, and found that the employee’s termination violated the NLRA. The NLRB emphasized that the no-strike pledge and the timing of the leave constituted evidence of anti-union animus. The NLRB further reasoned that the employer “failed to show it would have fired [the employee] regardless of his participation in the strike.”

On appeal, the Eighth Circuit reversed the NLRB’s determination on the grounds that the NLRB applied the wrong legal standard. The Court explained that under the Wright Line legal standard, the NLRB’s General Counsel must first prove that an employee’s protected conduct was a “substantial or motivating factor in the adverse action.” If and only if the General Counsel can make that showing, the burden shifts to the employer to show that it would have taken the same action for a legitimate, nondiscriminatory reason regardless of the employee’s protected activity.

The court explained that to prove anti-union animus is a “substantial or motivating factor in the adverse action,” simple animus toward the union is not enough. Although hostility towards the union is a factor that should be considered, the court stated that “general hostility toward the union does not itself supply the element of unlawful motive.” The court concluded that the NLRB misapplied the Wright Line standard and did not hold the General Counsel to its burden of providing that discriminatory animus towards the employee’s protected conduct was a “substantial or motivating factor” in the termination decision. Accordingly, the court refused to enforce the NLRB’s order.

Takeaway: The Nichols Aluminum LLC decision is a good reminder that the NLRB does not have the last word on labor law matters. When the NLRB reaches decisions that seem contrary to common sense (like this one or this one or this one), an appeal to a federal circuit court may be an effective means of recourse.

Do Employees Have a Right under the NLRA To Wear Shirts That Say “Inmate” and “Prisoner” While Working?

No – a federal appeals court recently rejected the argument that the National Labor Relations Act (NLRA) protects an employee who wears a shirt that says “inmate” or “prisoner” while working.

In Southern New England Telephone Co. v. NLRB, the court addressed the issue of whether an employer could prohibit employees who entered customers’ homes from wearing union shirts that said “inmate” on the front and “prisoner of AT&T” on the back. Nos. 11-1099, 11-1143 (D.C. Cir. July 10, 2015). The NLRB had previously decided that the employer’s prohibition was a violation of the employees’ rights under Section 7 of the NLRA. In reversing the NLRB’s decision, the court stated that “common sense sometimes matters in resolving legal disputes” and that the employer’s prohibition of the inmate/prisoner shirts “seems reasonable.”

Although the NLRA ordinarily does not permit an employer to prohibit employees from wearing union apparel at work, there is a “special circumstances” exception to that rule. Under the special circumstances exception, a company may “lawfully prohibit its employees from displaying messages on the job that the company reasonably believes may harm its relationship with its customers or its public image.” The employer bears the burden of proving this exception applies based on a reasonable belief that the message may damage customer relations — even in the absence of evidence of actual harm.

When the NLRB first addressed this case, it decided that the special circumstances exception did not apply because the shirts “would not have been reasonably mistaken for prison garb.” The D.C. Circuit Court of Appeals disagreed and held that this was an unreasonable application of the special circumstances exception. Instead, the court recognized that “[n]o company, at least one that is interested in keeping its customers, presumably wants its employees walking into people’s homes wearing shirts that say ‘Inmate’ and ‘Prisoner.’” The court also emphasized that the employer’s prohibition of the shirts was lawful because it was limited to employees who interact with customers or who work in public.

Takeaway: Although an employer usually cannot prohibit employees from displaying union messages while working, the special circumstances exception allows an employer to do so when there is a reasonable belief that the message may damage customer relations or the company’s public image.

Are Racist and Profane Comments Made During Union Picketing Protected Under the NLRA?

Yes – according to an administrative law judge for the National Labor Relations Board (NLRB), racist and profane comments made during union picketing qualify as protected concerted activity under the National Labor Relations Act (NLRA).

In Cooper Tire & Rubber Co., the employer and the union reached impasse during collective bargaining, and the employer locked out the employees and hired replacement workers. No. 08–CA–087155 (June 5, 2015). In response, the union employees picketed outside of the workplace. When vans of replacement workers arrived, the union employees made obscene gestures and shouted multiple racist and profane statements at the replacement workers. These statements included, but were not limited to, the following:

  • “Hey, did you bring enough KFC for everyone?”
  • “Go back to Africa, you bunch of f***ing losers.”
  • “Hey, anybody smell that? I smell fried chicken and watermelon.”

Consistent with the employer’s policies against racial harassment, the employer discharged the employee who made these statements. The employee then filed an unfair labor practice charge with the NLRB.

Because the comments were made during picketing related to a labor dispute, the ALJ concluded that the comments were protected concerted activity under the NLRA. The ALJ then considered whether the comments were so egregious as to lose their protection under the NLRA. The ALJ decided that because the statements did not tend to coerce or intimidate other employees in the exercise of their rights under the NLRA and did not raise a reasonable likelihood of imminent physical confrontation, the statements were not so egregious as to lose their protection.

The ALJ explained that while the comments were certainly “racist, offensive, and reprehensible, . . . they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property.” In addition, the comments were “unaccompanied by any threatening behavior or physical acts of intimidation.”

The ALJ also explained that picket-line activity is judged by a different, more lenient standard than activity in the workplace. Because the ALJ determined that the conduct was protected by the NLRA, it ordered the employer to reinstate the employee and pay him back-pay.

Takeaway: Although potentially subject to appeal, the Cooper Tire & Rubber Co. case is another in a series of cases (like this one) in which either an ALJ or the NLRB has found that reprehensible employee conduct is protected by the NLRA.

Is a Blanket Savings Clause Sufficient To Protect an Employer’s Policies Under the NLRA?

Probably not – in a recent case, an administrative law judge (ALJ) for the National Labor Relations Board (NLRB) rejected an employer’s argument that a savings clause added to the beginning of its employee handbook shielded the employer from liability.

The focus of the dispute in Macy’s, Inc. was whether the employer’s policies were unlawfully overbroad under Section 7 of the National Labor Relations Act (NLRA). No. 1-CA-123640 (May 12, 2015). The Union and the NLRB General Counsel argued that a number of the employer’s policies chilled the exercise of employees’ Section 7 rights. The ALJ agreed that many of the policies violated the NLRA for reasons similar to those discussed in the recent advice memorandum from the NLRB Office of General Counsel regarding employment policies. For example, the confidentiality provision was overbroad because it prohibited disclosure of “the personal information of the Company’s employees and customers.” In addition, the intellectual property policy prohibited the use of the Company’s logo or trademark, which the ALJ concluded may discourage employees from using the Company’s logo or trademark in Union materials.

After finding the employer’s policies violated the NLRA, the ALJ analyzed whether the employer’s savings clause neutralized the employer’s policies. Specifically, the employer sent its employees a message in April of 2014, notifying them that it added the following disclaimer as an introductory page to its handbook:

Nothing in the Code or the policies it incorporates, is intended or will be applied, to prohibit employees from exercising their rights protected under federal labor law, including concerted discussion of wages, hours or other terms and conditions of employment. This Code is intended to comply with all federal, state, and local laws, including but not limited to the Federal Trade Commission, Endorsement Guidelines and the National Labor Relations Act, and will not be applied or enforced in a manner that violates such laws.

The ALJ explained that in order to repudiate unlawful policies effectively, a savings clause must be “timely, unambiguous, specific in nature to the coercive conduct, and untainted by other unlawful conduct.” The ALJ determined that the employer’s savings clause was too generic in contrast to the specificity of the unlawful policies, and it did not specifically reference those policies. In addition, the savings clause was not added until 17 months after the promulgation of the rules at issue. Therefore, the ALJ concluded that the savings clause was ineffective.

Takeaway: A blanket savings clause at the introduction of an employee handbook may not be sufficient to bring overbroad employment policies into compliance with the NLRA.

NLRB Holds That An Employee’s Ridiculously Profane Facebook Post Is Protected, Concerted Activity Under the NLRA

On March 31, 2015, the NLRB published a decision holding that an employee’s Facebook post calling his boss a “nasty motherf***er” and making other profane comments was protected, concerted activity under the National Labor Relations Act (NLRA).

In Pier Sixty, LLC, the employee of a catering service voiced his frustrations with his supervisor on Facebook. 362 NLRB No. 59 (NLRB, Mar. 31, 2015). At the time, a union campaign was underway at the employer, and an election to certify the union was scheduled. Two days before the election, a server was upset that his supervisor spoke to employees in a loud, harsh tone. During a break, the server posted the following message to his Facebook account:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

Later, the employer’s Human Resources found out about the post and terminated the employee. An unfair labor practice charge followed.

At the hearing, the administrative law judge (ALJ) determined that the workplace was rife with foul language and that comments such as “mother***er,” “a**hole,” and “eat sh**” were commonplace. The ALJ concluded that the server’s Facebook post was consistent with language that was a “daily occurrence” in the workplace and which typically did not result in any disciplinary response. Because the post related to the employee’s working conditions and the pending union campaign, the ALJ determined that the Facebook post was protected, concerted activity and that the employee’s termination violated the NLRA.

On appeal, the NLRB agreed with the ALJ. The NLRB explained that the “Facebook comments were part of a sequence of events involving the employees’ attempts to protest and ameliorate what they saw as rude and demeaning treatment on the part of Respondent’s managers . . . .” The NLRB also held that the Facebook post was not so egregious so as to lose the protections of the NLRA. The NLRB noted that the language was not qualitatively different from the obscene language normally tolerated by the employer and that no other employee had ever been discharged from similar language.

Takeaway: The Pier Sixty case is another example of how obscene language may qualify as protected, concerted activity under the NLRA – although that is not always the case. In Pier Sixty, the fact that the employer regularly tolerated similar language in the workplace was particularly harmful to the employer’s defense.

New NLRB Guidance Challenges Reasonable Handbook Policies

On March 18, 2015, the Office of the General Counsel for the National Labor Relations Board (NLRB) released a memorandum regarding employer policies that are allegedly overbroad and unlawful under the National Labor Relations Act (NLRA). Many of the challenged policies are commonplace and not intuitively questionable from a legal perspective. The NLRB has challenged similar policies before, including a seemingly innocuous “be nice” policy.

The memorandum covers a number of different types of policies, such as confidentiality, employee conduct, communications with third parties, use of employer logos or trademarks, and conflicts of interest. Some of the policies identified as allegedly overbroad and illegal under the NLRA include the following:

  • “If something is not public information, you must not share it.”
  • “Be respectful of others and the Company.”
  • “Do not make fun of, denigrate, of defame your co-workers, customers, franchisees, suppliers, the Company, or our competitors.”
  • “Don’t pick fights online.”
  • “Do not make insulting, embarrassing, hurtful or abusive comments about other company employees online, and avoid the use of offensive, derogatory, or prejudicial comments.”

The NLRB general counsel argues that these policies may chill employees in the exercise of their right under Section 7 of the NLRA to engage in concerted activities for mutual aid and protection, like union organizing. See 29 U.S.C. § 157. For example, the memorandum warns that employees may interpret overbroad confidentiality policies to include information about employee wages and benefits and other terms and conditions of employment. The memorandum also explains that because “protected concerted activity is often contentious and controversial, employees would reasonably read a rule that bans ‘offensive,’ ‘derogatory,’ ‘insulting,’ or ‘embarrassing’ comments as limiting their ability to honestly discuss such subjects.”

One of the positive aspects of the memorandum is that it provides examples of some employer policies that the NLRB considers to be lawful. For example, a rule prohibiting disclosure of “business secrets or other confidential information” would likely be acceptable, as would a rule prohibiting “rudeness or unprofessional behavior toward a customer, or anyone in contact with the company.” For employers looking for NLRB-approved sample policy language, the memorandum is a good resource.

Takeaway: Employers with employee handbooks should review their policies in light of the new NLRB general counsel memorandum. It is not clear whether courts will agree with all of the positions stated in the memorandum, but following the guidance should reduce the risk of unfair labor practice charges.