Labor Relations Law and Procedure Archives

January 27, 2010

With High Court Set to Decide Authority of Two-Member NLRB, U.S. Senate Dispute Delays Vote on Nominees to Fill Remaining Vacancies on Labor Board

In less than two months, on March 23, 2010, the U.S. Supreme Court will hear arguments in New Process Steel v. NLRB, Case No. 08-1457, in which the nine justices are being asked to decide whether the National Labor Relations Board has authority to decide cases with only two sitting members of a five-member board.

Against this backdrop, Steven Greenhouse of The New York Times writes an interesting article on the delay in the U.S. Senate, led by Senator John McCain (R-AZ) to confirm a three-person package of nominees that would fill the remaining vacancies on the NLRB:

President Obama has nominated three lawyers to the board, but Mr. McCain, Republican of Arizona has delayed confirmation of the three-person package for months by placing a hold on one nominee, Craig Becker, an associate general counsel for the A.F.L.-C.I.O. and the Service Employees International Union. Under Senate rules, a single member’s hold can prevent a full vote unless 60 members vote to overcome the hold.

Mr. McCain contends that Mr. Becker would deny employers their proper role in union elections. In a letter to Senator Tom Harkin, Democrat of Iowa and the Labor Committee’s chairman, Mr. McCain referred to Mr. Becker as “probably the most controversial nominee that I have seen in a long time.”

Mr. Becker’s supporters say he believes employers should have a voice in union elections, but should not be able to force workers to attend anti-union meetings. Mr. Harkin called Mr. Becker “one of the pre-eminent labor law thinkers in the United States,” and said Mr. Becker would approach the job “with an impartial and open mind.”

Wilma B. Liebman, the board’s Democratic chairwoman, said of the stalemate: “This reflects how our political process is paralyzed at the moment. This is not the way government is supposed to function.”

In 2008, Democratic senators blocked confirmation of President George W. Bush’s nominees to the board.

Ms. Liebman said the board’s two-member status had meant years of delay for many aggrieved workers. For instance, workers at a home for the developmentally disabled in Brooklyn voted to unionize in June 2003, but they do not have a union because they are awaiting a decision from the board.

For the full article, go to Labor Panel Is Stalled by Dispute on Nominee (NYT, 1/14/2010).

This post was authored by Seth Greenberg.

February 12, 2010

Nominee to NLRB Blocked in Senate; Recess Appointment Urged

On Tuesday, February 9, 2010, a Republican-led filibuster blocked the appointment of Craig Becker, a union lawyer for the AFL-CIO and SEIU, to the National Labor Relations Board. Supporters of Becker urge President Obama to make appointment while Congress is in recess this month. For more, see GOP Blocks Obama Labor Board Nominee (New York Times, 2/9/10) and Unions Push White House to Appoint Becker (Wall Street Journal, 2/11/10).

This post was authored by Seth Greenberg.

April 23, 2010

NLRB Unveils 75th Anniversary Website

This summer, the National Labor Relations Board (NLRB) will be turning 75 years old. In celebration of this milestone, the NLRB has unveiled a 75th Anniversary website. Included among its many features are: a history of the NLRB, pictures and timelines, statement of employee rights, as well as a “fun and games” section which provides trivia and crossword puzzles.

Created as part of the National Labor Relations Act in 1935, the NLRB is charged with overseeing enforcement of the Act itself. Principally, the NLRB conducts elections for labor union representation and investigates and remedies unfair labor practices. Its jurisdiction is limited to private sector employers the U.S. Postal Service. The NLRB has 51 regional, sub-regional, or resident offices.

There are three regional offices and one resident office located in New York. They are:

Manhattan (Region 2)
26 Federal Plaza, Room 3614
New York, NY 10278-0104
Regional Director: Celeste Mattina

Buffalo (Region 3)
Niagara Center Building
130 S. Elmwood Avenue
Suite 630
Buffalo, NY 14202-2387
Regional Director: Rhonda P. Ley

Brooklyn (Region 29)
Two Metro Tech Center
100 Myrtle Avenue, 5th Floor
Brooklyn, NY 11201-4201
Regional Director: Alvin P. Blyer

Albany (Resident Office 3)
Leo W. O'Brien Federal Building
Clinton Ave and N Pearl Street - Room 342
Albany, NY 12207-2350
Resident Officer: Barnett Horowitz

June 23, 2010

Decisions By Two-Member NLRB Ruled Improper

In a holding that calls into question hundreds of decisions by the National Labor Relations Board (NLRB) over the last two years, the U.S. Supreme Court recently ruled that a two-member NLRB cannot legally exercise the board’s authority. The narrow 5-4 ruling in New Process Steel v. NLRB (decided June 17, 2010) interprets a so-called quorum and delegation clause in the National Labor Relations Act “as requiring that the delegee group maintain a membership of three in order for the delegation to remain valid.”

By the end of 2007, the ordinarily five-member board found itself with only four members and was expecting two more vacancies as the terms of two members were about to expire. By January 1, 2008, only two members remained, leaving three vacancies. According to Section 3(b) of the National Labor Relations Act, the “Board is authorized to delegate to any group of three or more members any or all of the powers which it may itself exercise.” That same provision also provides that “three members of the Board shall, at all times, constitute a quorum of the Board, except that two members shall constitute a quorum of any group” to which the board has delegated its powers. The two-member board continued to issue rulings over the next 27 months under the delegated powers it believed was authorized by Section 3(b).

The nation’s highest court was asked whether the two-member group was authorized to act for the board. The majority said it was not so authorized. Writing for the Court, Justice Stevens explained that the at-issue provision requires that such delegated power be vested continuously in a group of three members, concluding that this interpretation “is the only way to harmonize and give meaningful effect to all of the provisions in [Section] 3(b).” Justice Stevens further reasoned that if Congress wished to allow the board to decide cases with only two members, it would have and can easily do so. According to Stevens, “Section 3(b), as it currently exists, does not authorize the Board to create a tail that would not only wag the dog, but would continue to wag after the dog died.”

What happens with the more than 500 cases decided in the last two plus years is still in doubt. Those cases were decided only where the two remaining members of the board, a Republican and a Democrat, were in agreement. Many experts argue that unless appealed on the ground that the two members lacked appropriate authority, employers and unions may have waived the opportunity for reconsideration. NLRB Chair Wilma Liebman issued a statement that defended the decision of the two-member group to issue rulings but acknowledged the board’s obligation to ensure the Court’s rulings are effectuated accordingly. She explained: “We believed that our position was legally correct and that it served the public interest in preventing a Board shutdown. We are of course disappointed with the outcome, but we will now do our best to rectify the situation in accordance with the Supreme Court’s decision.”

This post was authored by Seth Greenberg of Greenberg Burzichelli Greenberg P.C.

January 7, 2011

National Labor Relations Board Proposes Rule Requiring Employers To Notify Their Employees of NLRA Rights

On December 21, 2010, the National Labor Relations Board proposed a new rule that would "require that employees of all employers subject to the NLRA be informed of their NLRA rights, as they are of other rights at the workplace." The proposed rule would apply only to private-sector employers subject to the NLRA, which currently excludes agricultural, railroad, and airline employers. The purpose of the proposed rule is "to increase knowledge of the NLRA among employees, to better enable the exercise of rights under the statute, and tho promote statutory compliance by employers and unions." The proposed rule can be found on the NLRB's website at Proposed NLRB Rule.

Although the Board has expressed that most employers who might fail to post the notice "would do so because they were unaware of the rule," the Board proposes the following sanctions for failure or refusal to post the required employee notices after being requested to do so: (1) finding the failure to post the required notices to be an unfair labor practice; (2) tolling the statute of limitations for filing unfair labor practice charges against employers that fail to post the notices; and (3) considering the knowing failure to post the notices as evidence of unlawful motive in unfair labor practice cases.

The proposed rule comes out of a 1993 petition to the NLRB by Charles Morris, Professor Emeritus of Law, Southern Methodist University. Similar postings are currently required under the Fair Labor Standards Act, Title VII of the Civil Rights Act of 1964, the Age Discrimination in Employment Act, the Occupational Safety and Health Act, the Americans with Disabilities Act, and the Family and Medical Leave Act, among others.

NLRB Member Brian Hayes dissented from the issuance of the proposed rulemaking, expressing his belief that "the Board lacks the statutory authority to promulgate or enforce the type of rule which the petitions contemplated and which the proposed rule makes explicit."

A Notice of Proposed Rulemaking was published in the Federal Register on December 22, 2010 and has a 60 day public comment period. No employer would have to post any notice unless and until the Board issues a final rule requiring such posting. According to the Board, any such notice of NLRA rights could be downloaded from its website and provided at no charge at regional offices.

July 14, 2011

NLRB Proposes Amendments to Election Procedures

On June 21, 2011, the National Labor Relations Board proposed amendments to existing procedures that govern representation cases. Open meetings on these proposed amendments are scheduled for July 18th and 19th, in which scores of speakers have registered to present. Written comment will also be accepted by August 22nd. According to the Board's news release, if finally adopted, the proposed election rule amendments would:

Allow for electronic filing of election petitions and other documents.

Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

Ensure that employees, employers and unions receive and exchange timely information they need to understand and participate in the representation case process.

Standardize timeframes for parties to resolve or litigate issues before and after elections.

Require parties to identify issues and describe evidence soon after an election petition is filed to facilitate resolution and eliminate unnecessary litigation.

Defer litigation of most voter eligibility issues until after the election.

Require employers to provide a final voter list in electronic form soon after the scheduling of an election, including voters' telephone numbers and email addresses when available.

Consolidate all election-related appeals to the Board into a single post-election appeals process and thereby eliminate delay in holding elections currently attributable to the possibility of pre-election appeals.

Make Board review of post-election decisions discretionary rather than mandatory.

"The proposed amendments," according to the Board (with Member Brian Hayes dissenting), "are intended to reduce unnecessary litigation, streamline pre- and post-election procedures, and facilitate the use of electronic communications and document filing."

A fact sheet and summary can be found at NLRB Election Rules & Regulations Fact Sheet.

This post was authored by Seth Greenberg of Greenberg Burzichelli Greenberg P.C.

October 7, 2011


Social media is a developing, and in many ways still a murky area of the law, particularly in the employment context. Use of Facebook, Twitter, Google+ and the myriad other social media by employees both at and away from the workplace is rapidly increasing and also beginning to blur the line between personal and professional activities. Faced with potential liability under anti-harassment and discrimination laws as well as FTC guidelines on employee endorsements and testimonials, employers cannot completely ignore employee social media activity. Nonetheless, the line between private and professional social media activity is not always clearly defined in the law, forcing employers to make difficult disciplinary decisions concerning employee social media activity.

The National Labor Relations Board (the "Board") has recently begun to define the contours of permissible employer disciplinary action under the National Labor Relations Act (the "NLRA") for employee social media activity. The Board's Office of the General Counsel published a report on social media cases within the last year that provides insight on the Board's view on social media and the contexts in which issues can arise. Although none of the cases discussed in the report reached the Board level, two recent Administrative Law Judge rulings - Hispanics United of Buffalo, Inc. v. Carlos Ortiz, 3-CA-27872 and Karl Knauz Motors, Inc. v. Robert Becker, 13-CA-46452 - provide contrast between protected and unprotected employee speech via social media under the National Labor Relations Act ("NLRA"). An important fact in both decisions is that they concerned non-unionized workplaces, highlighting that the NLRA applies in both the union and non-union context.

Non-Union Employees' Criticisms of a Co-Worker Protected Concerted Activity Under the NLRA

In the first ruling of its kind, Administrative Law Judge ("ALJ") Arthur Amchan concluded in Hispanics United of Buffalo, Inc. ("HUB"), that HUB - a non-union employer - committed an unfair labor practice when it terminated five employees over postings they made on Facebook that were critical of a co-worker. The facts, as determined by ALJ Amchan, are as follows: The posts at issue began on Saturday, October 9 - not a workday for the employees - by Mariana Cole-Rivera on her Facebook account stating "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?" This post generated a fair amount of responding posts from HUB employees, which were read by Lydia Cruz-Moore (the subject of the posts). Cruz-Moore contacted HUB Executive Director, Lourdes Iglesias, and suggested that Iglesias should terminate, or at least discipline, the five employees. On Tuesday, October 12, 2010, Iglesias met with the five employees individually about the Facebook posts and fired each of them. Iglesias explained that the Facebook posts constituted bullying and harassment in violation of HUB's policy on harassment. Iglesias also stated that Cruz-Moore suffered a heart attack as a result of the postings and HUB would have to pay her compensation (though the ALJ noted there was no evidence in the record establishing a causal connection between Cruz-Moore's health and the posts). 
Carlos Ortiz, one of the five terminated employees, filed an unfair labor practice charge with the Board, alleging that HUB violated Section 8(a)(1) of the NLRA, which makes it an unfair labor practice for an employer to interfere with employees' rights under Section 7 of the NLRA. Section 7 provides that "employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection." 
HUB conceded that the five discriminatees were discharged solely because of the October 9th Facebook postings. Therefore, the ALJ's analysis focused on two main issues: First, whether the terminated employees' Facebook posts were protected concerted activities, and second, whether the posts constituted misconduct so egregious as to lose protection under the NLRA. 
ALJ Amchan held that the Facebook communications amongst the five employees were protected concerted activities. The ALJ first found that because the Facebook posts, initiated by Cole-Rivera, sought to enlist the support of fellow employees they were indeed concerted activities. Further, the ALJ noted that HUB "lumped the discriminatees together in terminating them, establish[ing] that [it] viewed the five as a group and that their activity was concerted." ALJ Amchan then went on to conclude that the concerted activities were indeed protected, even though they were not trying to change their working conditions, because the employees "were taking a first step towards taking group action to defend themselves against the accusations they could reasonably believe Cruz-Moore was going to make to management." The ALJ went on to explain that "[e]xplicit or implicit criticism by a co-worker of the manner in which [employees] are performing their jobs is a subject about which employee discussion is protected by Section 7. That is particularly true . . . where at least some of the [employees] had an expectation that Lydia Cruz-Moore might take her criticisms to management." 
Because HUB alleged that the employees' Facebook postings violated HUB's employee policy on harassment, the ALJ next considered whether the employees' actions became so opprobrious as to lose protection under the NLRA, based on the factors the Board set out in Atlantic Steel Co., 245 NLRB 814 (1979). ALJ Amchan explained that because (i) the Facebook posts were not made at work or during working hours, (ii) the subject matter concerned a protected communication, i.e., a co-worker's criticism of job performance, and (iii) the discriminatees did not engage in any type of outburst, the employees did not lose protection under the NLRA. Further, ALJ Amchan determined that nothing in the record suggested that the employees violated any company policy or procedure. 
Judge Amchan ordered HUB to offer the five discriminatees reinstatement to their former jobs, or a substantially equivalent position, and back pay with interest. Further, any reference to the unlawful discharges must be removed from the five employees' personnel files and the discharges may not be used against them in any way.

Non-Union Employee Lawfully Terminated For Facebook Post Unrelated to Terms and Conditions of Employment

In Knauz BMW, ALJ Joel P. Biblowitz concluded that non-union employer Knauz Motors, Inc. ("Knauz") lawfully terminated employee Robert Becker for a Facebook post about an accident that occurred at a company-owned dealership. At issue in this decision were two series of posts by Becker on his personal Facebook page. According to the decision, in the first series of postings, Becker posted pictures from a sales event hosted by the employer's BMW dealership at which Becker worked, which included comments by Becker that were critical of the food selection at a luxury car sales event. The second set of posts included pictures and commentary regarding an accident at a Land Rover dealership owned by the employer in which a customer's 13-year-old son was allowed to sit behind the wheel of a truck, while the customer was standing beside the truck and the salesperson was in the passenger seat with the door open. Ultimately, the son ran over the customer's foot, drove the truck into a pond, and the salesperson was thrown in the water. The pictures were captioned: "This is your car: This is your car on drugs." Becker then commented, "I love this one...The kid's pulling his hair out...Du, what did I do? Oh no, is Mom gonna give me a time out?" Becker was terminated shortly after the postings. Becker's managers stated the termination was solely based upon the Land Rover postings and that the luxury car sales event "really had no bearing whatever...."  
Becker filed an unfair labor practice charge, alleging that his termination violated Section 8(a)(1) of the NLRA because it interfered with his rights under Section 7. ALJ Biblowitz assessed both sets of Facebook postings and concluded that the first set, related to the luxury sales event, was protected concerted activity for several reasons. First, Becker and a fellow employee had vocalized their concerns about the food selection at a meeting with superiors prior to the postings, and the subject was further discussed by salespersons after the meeting. Additionally, because the food "inadequacies" could have potentially had an effect upon Becker's compensation should customers have been turned off by the food selection, the postings fell within the realm of protected concerted communications.
With little discussion, the ALJ found that Becker was terminated solely for the second set of postings related to the accident, which the ALJ concluded were far from protected concerted activity. According to ALJ Biblowitz, the pictures and comments about the accident were posted " a lark, without any discussion with any other employee of the Respondent [Knauz Motors, Inc.], and had no connection to any of the employees' terms and conditions of employment." Therefore, the ALJ concluded that Knauz did not wrongfully terminate Becker. 
The two decisions highlight that employers in both the union and non-union context need to consider protections afforded under the NLRA before taking action against employees for social media activity. Further, New York employers should also consider employee protections under Article 7, Section 201(D) of the New York Labor Laws, often referred to as the "Legal Activities" law, which prohibits employers from discriminating against employees or potential employees based upon protected activities that occur away from the employer's place of business and outside of work hours. These protected activities include: political activities, legal recreational activities, legal use of consumable products, and membership or participation in a union. It could be argued that employee social media activity would fall within the sphere of these protections. 
This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day. The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

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March 26, 2012


As employers continue to grapple with use of social media by employees for business, for pleasure, and in and outside the workplace, the National Labor Relations Board (the "Board") has issued another report on social media cases (Memorandum OM 12-31), updating a prior report (Memorandum OM 11-74), which we discussed in an earlier post.  In its news release on the updated report, the Board offers two key take-aways: 

1.            "Employer policies should not be so sweeping that they prohibit the kinds of activity protected by federal labor law, such as the discussion of wages or working conditions among employees."


2.            "An employee's comments on social media are generally not protected if they are mere gripes not made in relation to group activity among employees."


The updated report covers 14 cases in total, which involve disciplinary action, including discharges, for employee social media activity.  The conclusions in the report demonstrate the fact-specific nature of an inquiry into whether an employer is enforcing its social media policy in a discriminatory manner, which essentially turns on whether the social media activity that is regulated through the policy is group activity protected by Section 7 of the National Labor Relations Act ("NLRA"), as opposed to individual activity (or "gripes" as they are sometimes referred to in the report).  Of the 14 cases discussed in the report, seven address whether the employer's social media policy was lawful on its face, and five of the policies addressed were found to be unlawfully broad for one reason or another.  Although the Board's news release offers the two main take-aways noted above, there are several other issues and pitfalls addressed in the report that employers need to be aware of when drafting a social media policy:


·        Non-Union Employees.  Both union and non-union employees' social media activities are protected by the NLRA.  The report makes no distinction between union and non-union employees in analyzing whether a social media policy is lawful on its face or in its application. 


·        Disparaging Comments.  The report considers several examples of policies prohibiting disparaging comments in one way or another, such as general prohibitions on "defamatory" language, "inappropriate conversations," or using "unprofessional communications," or requiring social media communications to be "professional."  The report emphasizes that these types of blanket prohibitions can chill employees in the exercise of their rights under Section 7 of the NLRA to "engage in ... concerted activities for the purpose of collective bargaining or other mutual aid or protection," and were therefore found to be unlawful.  For example, the Board held that a rule prohibiting "[m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media" would reasonably chill Section 7 rights because it could reasonably be construed to prohibit an employee from criticizing the employer's pay practices, and did not include any limiting language or examples of prohibited commentary.  Of course, a social media policy still needs to be consistent the employer's policies against harassment and discrimination, which is where limiting language, an issued discussed below, comes into play.   


·        Confidential Information.  The report's conclusions on prohibitions on discussing "confidential information" illustrate the careful balance that must be struck between an employer's duty or desire to protect certain information, such as trade secrets, non-public financial information, protected personal information, and the like, on the one hand, and an employee's right to discuss terms and conditions of employment, such as wages, on the other hand.  One policy addressed by the report prohibited employees from disclosing or communicating information of a confidential, sensitive nature, or non-public information concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department.  The policy was found unlawful because it did not define confidential, sensitive, or non-public information and could therefore reasonably be construed to prohibit employee from discussing matters such as wages and working conditions, which may be non-public but are discussions protected by the NLRA.  Again, limiting language and explanatory definitions can remedy the issue.


·        Company Name, Logo, & Marks.  Many organizations seek to limit the use of their company name, logo, and trade or service marks, but the report makes clear that employees have a Section 7 right to use their employer's name or logo in conjunction with protected concerted activity, such as communicating with co-workers or the public in general about a labor dispute.  Accordingly, a policy prohibiting the use of the company name or service mark outside the course of business without approval of the law department was held unlawful. 


·        Media Communications.  Restrictions on communications with the media can be another difficult area to navigate.  The report explains that employees have the right to communicate with the public regarding an on-going labor dispute, and that for this reason blanket prohibitions on communicating with the media or requiring prior authorizations will be held to be unlawfully overbroad. 


·        Identifying the Employment Relationship.  The report found a policy that required that employees always identify themselves as the employer's employees on social media and state that their views were their own when posting about job-related matters was both (1) unlawfully overbroad, because the Board views personal profile pages as an important function in enabling employees to communicate on social media with co-workers at their own or other locations (although the Board does not explain how the policy impeded this function), and (2) unlawfully burdensome on Section 7 communications because it required employees to repeat that their views are their own in every communication.  In the context of another policy, however, the Board recognized that employers need to carefully navigate between allowing communications protected under the NLRA and the Federal Trade Commission's guidelines on endorsements and testimonials,  pursuant to which individuals who have a relationship to a company, such as employees, must disclosure that relationship when discussing the company's products or services or those of its competitors.  Thus, the Board found lawful a policy that required employees to state that their views were their own and not those of the employer when discussing "promotional content" via social media, and defined "promotional content" as communications designed to endorse, promote, sell, advertise or otherwise support the employer and its products and services, referring to the Federal Trade Commission's regulations. 


·        Savings Clauses.  Although the report emphasizes that limiting language can cure overbroad language in a social media policy, a general savings clause may be insufficient to render a social media policy lawful under the NLRA.  For example, one policy discussed in the report stated that "in external social networking situations, employees should generally avoid identifying themselves as the Employer's employees, unless there was a legitimate business need to do so or when discussing terms and conditions of employment in an appropriate manner."  The Board found the policy unlawful because it did not define or explain what was "appropriate," either through specific examples or limiting language, which could chill employees from criticizing the employer's labor policies, treatment of employees, or other terms and conditions of employment.  The policy had a savings clause that provided that the policy would not be interpreted or applied so as to interfere with employee rights to self-organize, form, join, or assist labor organizations, to bargain collectively though representatives of their choosing, or to engage in other concerted activities, or to refrain from engaging in such activities.  The Board concluded that an employee could not reasonably be expected to know that this language encompassed discussions the employer deemed "inappropriate" and thus the savings clause was insufficient to render lawful the otherwise overbroad policy. 


·        Limiting Language and Examples.  Although the report includes several examples of overbroad policies, it also includes examples of lawful policies that restrict social media communications on the above-discussed topics, but included limiting language or examples, which kept the policy within the bounds of the NLRA.  For example, a policy that prohibited social media communications that are vulgar, obscene, threatening, intimidating, harassing, or a violation of company policies against discrimination, harassment, or hostility on account of age, race, religion, sex, ethnicity, nationality, disability, or other protected class, status or characteristic, was held lawful because it provided examples of the egregious conduct it prohibited.  Similarly, a policy that prohibited employees from using or disclosing confidential and/or proprietary information was found lawful where it defined confidential and/or proprietary information as including personal health information about customers or patients, and "embargoed information" such as launch release dates and pending reorganizations.  The report explains that the limiting language and examples made clear that the policy was intended to protect the employer's legitimate interest in keeping certain information confidential and the privacy interests of the customers, and the prohibitions would not reasonably be understood to restrict communications protected under Section 7 of the NLRA. 

Appropriate policing of employees' social media activities is necessary given the speed at which online communications are spread, and the potential impact that such communications may have on an employer's operations and reputation.  To be sure, there are a host of legal and business concerns that need to be addressed in a comprehensive social media policy, but the two Board reports are a helpful starting place for employers looking to create or amend social media policies.   


This post was authored by Matt Lampe, Joseph Bernasky, and Michele Bradley of Jones Day.  The views and opinions expressed herein are those of the authors and do not necessarily reflect the views of Jones Day or the New York State Bar Association.

August 29, 2014

NLRB: Used Car Salesman's Profanity-Laced Outburst Did Not Cost Him Protection of the Act

On remand from the Ninth Circuit, the National Labor Relations Board, in Plaza Auto Center, Inc., 360 N.L.R.B. No. 117 (May 28, 2014), reaffirmed that the employee, a used car salesman, did not lose the protection of the National Labor Relations Act due to his profane and derogatory remarks to the owner while making concerted complaints regarding compensation practices. The employee's remarks included, among others, calling the owner a "fucking mother fucking," a "fucking crook," and an asshole." The Ninth Circuit directed the Board to rebalance its four-factor Atlantic Steel analysis based upon its finding that the nature-of-the-outburst factor weighed against protection. On review, the Board concluded that even accepting the court's determination, the nature-of-the-outburst factor was substantially outweighed in favor of protection by the other three factors, which are: (1) the location of the discussion; (2) the subject matter of the discussion; and (3) employer provocation by unfair labor practices.

In dissenting, Board Member Harry Johnson stated that the majority erred in implying that vulgarity in the workplace is common. He remarked, "The Board is out of touch here. The reality of the modern workplace is that employees do not typically curse each other and their superiors like characters in a Scorsese film."

September 5, 2014

NLRB: Back Pay For Unlawful Reduction in Hours Not Subject to Offset for Interim Earnings

On August 25, 2014, the National Labor Relations Board, in Community Health Services, Inc., 361 N.L.R.B No. 25, reaffirmed that the back pay ordered to remedy the employer's unlawful reduction in hours is not subject to offset based upon the employees' interim earnings from other employment. In 2004, the Board found that the employer had violated the Act by reducing working hours for its respiratory department employees without bargaining with the union that represented them. It ordered the employer to remedy that violation by making the employees whole for the lost earnings and benefits resulting from this unilateral change, which were to be computed in accordance with its holding in Ogle Protection Service, 188 N.L.R.B. 682 (1970), enfd., 444 F.2d 502 (6th Cir. 1971). On December 20, 2011, the District of Columbia Circuit remanded the case to the Board for a more thorough analysis of the interim earnings issue.

On remand, the Board concluded that the standard established in Ogle Protection Service, should continue to govern the calculation of back pay in cases that do not involve a cessation of employment. The Board reasoned that in such cases, "permitting the employer to deduct those interim earnings from back pay owed, rather than permitting the employee to enjoy the full benefit of them, would represent an unwarranted windfall to the employer and discourage compliance with the law." Applying the Ogle Protection Service back pay formula in this manner, the Board explains, "falls well within the permissible bounds of the Board's broad remedial discretion and effectuates important statutory policies recognized by the Supreme Court."$File/Community825.pdf

September 6, 2014

NLRB: Employees' Paid Sick Leave Campaign Protected

The National Labor Relations Board in MikLin Enterprises, Inc., 361 N.L.R.B. No. 27 (8/21/14), ruled that the employer, a franchisee of the Jimmy John's sandwich shops, violated the National Labor Relations Act by disciplining employees for participating with the Industrial Workers of the World in a publicity campaign to obtain paid sick leave. The campaign involved placing posters in and near the employer's stores that displayed side-by-side pictures of two sandwiches with one described as being made by healthy worker and the other by a sick worker. The posters stated further: "Can't Tell the Difference? That's too bad because Jimmy John's workers don't get paid sick days. Shoot, we can't even call in sick. We hope your immune system is ready because you are about to take the sandwich test . . . . Help Jimmy John's workers win sick days." In concluding that the employees were engaged in protected activity under the Act, the Board cited that the posters were "directly linked to an ongoing labor dispute" and "did not constitute disloyalty or reckless disparagement as previously defined by Board and court precedent."

About Labor Relations Law and Procedure

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