Wow, 2012 was quite the year for the National Labor Relations Board (“Board”)! Last year, we discussed the Board’s agenda, which at the time we described as aggressive, but with the benefit of hindsight, describing the Board’s activity in 2012 as aggressive is like saying the Super Bowl Champion Baltimore Ravens are a good football team, true enough but certainly understated.
First, some hard statistics: In 2011, the Board saw a 17 percent increase in filings as compared to the prior year, which included both unfair labor practice charges and representation cases. During the past federal fiscal year (October 1, 2011 through September 30, 2012), the Board issued 341 decisions, a number slightly lower than the 368 issued the prior year. But do not let that comparison fool you; the Board was still hard at work, with the number of pending cases at the end of fiscal year 2012 at an all-time low. The Board has also proudly claimed a 91% settlement rate in meritorious unfair labor practice cases, and a 90% win rate (in whole or in part) in cases litigated before Board Judges during the past fiscal year.
Turning to more substantive issues, while the Board did not initiate any further rulemaking procedures in 2012, its two such initiatives begun in 2011 saw significant developments in early 2012. Unfortunately for the Board, but fortunately for non-union employers, neither of the Board’s rulemaking initiatives have been successfully implemented to date. As will be discussed in further detail below, the first Rule, adopted in-part by the Board in December 2011, modified certain procedures governing representation elections. The Rule became effective on April 30, 2012, but was successfully challenged and subsequently invalidated by a federal district court. The second Rule, promulgated in February 2011, would have required all employers covered by the National Labor Relations Act (“Act”), both non-unionized and unionized, to post a Notice of Employee Rights, which outlined certain employee rights under the Act, such as the right to organize, the right to strike and picket, the right of non-unionized employees to engage in concerted activities, etc. This Rule has been enjoined by the U.S. Circuit Court of Appeals for the D.C. Circuit, pending the outcome of the Board’s appeal from a district court’s nullification of the Rule.
The Board did seem to focus more on decisional law in 2012, and continued certain trends established in 2011. Please keep in mind that many of the Board’s decisions interpreting the Act impact all employers, both union and non-union employers alike. Some of the trends have led to dramatic results, including the overturning of well-established precedent and a decided interest in examining issues involving social media. Put quite simply, the Board’s trends have not been employer-friendly. The Board has expanded its sights and has begun examining other employer policies, beyond the social media context. Indeed, rarely these days does the Board seem to find an employer policy it deems lawful.
We reported extensively on the Board’s initiatives, and the impact those activities will have on employers, in our blog throughout the year. For your convenience, we have provided an overview of the more significant decisions and actions of the Board below, and have included further detail regarding the Board’s rulemaking activities.
New Challenges to Board’s Authority to Act
At the outset, it’s important to note that the Board’s very authority to act has again been challenged. In January 2012, President Obama made three “recess” appointments to the Board, Democrats Richard Griffin and Sharon Block, and Republican Terrance Flynn. (Such recess appointments allowed the President to avoid a Senate confirmation battle, and certainly one could agree that recess appointments are generally not the most appropriate way for a president to fill vacancies that normally require Senate confirmation.)
Soon after these recess appointments were made, however, legal challenges were filed in several federal courts challenging their validity, claiming that the Senate was actually not in recess at the time President Obama named the three Interim Members to the Board on January 4, 2012. There are several U.S. Courts of Appeal that are, as of this writing, considering these issues. Their decisions could have significant implications for the validity of most of the decisions issued by the Board in 2012. As of December 16, 2012, the term of lone Republican Board Member Brian Hayer expired, leaving the Board with only three Members, only one of whom had actually been confirmed by the Senate. You may recall that in 2010, the U.S. Supreme Court had invalidated a number of Board decisions, holding that a two-Member Board cannot act as a lawful quorum. New Process Steel v. Nat’l Labor Relations Bd., 560 U.S. _______, 130 S. Ct. 2635 (2010). If President Obama’s January 2012 recess appointments to the Board were declared unlawful, that would mean that the Board lacked the three-Member quorum to do business as required by the statute and the Supreme Court’s New Process Steel decision.
Indeed, that is exactly what has come to pass, as on January 25, 2013, a three judge panel of the U.S. Court of Appeals for the District of Columbia Circuit, unanimously found that the President had violated the U.S. Constitution by improperly appointing the three Interim Members when the U.S. Senate was not, according to the Court, actually in recess. Noel Canning v. Nat’l Labor Relations Bd., 194 LRRM 3089 (D.C. Cir. 2013). The Court found that the Board had therefore lacked a three-Member quorum, as required by New Process Steel, and that as a result, the Board’s Decision finding Noel Canning to have committed unfair labor practices was declared null and void.
Now there are other U.S. Courts of Appeals also considering the same issues regarding the validity of the January 2012 recess appointments, and ultimately it may again be up to the U.S. Supreme Court to determine whether the Board had proper authority in 2012 to issue the hundreds of decisions that it issued. The Noel Canning decision has continuing ramifications for the Board in 2013, because, of the three Members currently sitting on the Board, only the Chairman, Mark Pearce, was confirmed by the Senate. This means that if Noel Canning is upheld as the law of the land, not only will all or virtually all of the Board’s 2012 Decisions be invalid, so too will its decisions for 2013!
So, you the reader may ask “should I stop reading at this point? Why do I care what the Board did in 2012 if its decisions will all be declared invalid?”
First, we don’t yet know if the D.C. Court’s Noel Canning opinion will be affirmed by the Supreme Court. Secondly, we know that the last time the Board was found to have lacked a proper quorum in 2010 (New Process Steel), the Board (after subsequently being repopulated by confirmed appointees) revisited and resolved more than 600 cases, almost always agreeing with the earlier determinations (meaning that it is still worthwhile for you the reader to labor through the rest of this article)!
Further Update on the Board’s Rulemaking Initiatives
As noted above, the Board had undertaken two unusual rulemaking procedures in 2011. The first rulemaking initiative, which became effective on April 30, 2012, changed the Board’s pre- and post-election representation case procedures. The so-called “Quickie Election” Rule would have reduced the potential time period between the filing of a petition for election and the date for conducting the election, which would be detrimental to employer campaign efforts. However, the Rule was invalidated by a federal district court in Chamber of Commerce, et al. v. Nat’l Labor Relations Bd., 193 LRRM 2316 (D.D.C., No. 11-CV-2262, 5/14/12).
The other initiative, which would have required all employers covered by the Act to post a Notice of Employee Rights under the Act, was challenged in several federal courts. The Board’s implementation of that rule is currently on hold pending a decision by the U.S. Court of Appeals for the District of Columbia1. Oral argument was held in late 2012 and a decision is expected in early 2013.
The Board’s Significant Decisions
A summary of the Board’s key 2012 decisions is provided below.
a. Employers Prohibited from Requiring Confidentiality Regarding Workplace Investigations
The Board sent shockwaves through the employer community when it issued a surprising and unsettling decision holding that an employer violates the Act by establishing blanket workplace investigation procedures, policies, or forms that attempt to prohibit employees from discussing ongoing workplace investigations with their coworkers. Specifically, the Board concluded that such a rule violates Section 7 of the Act, which protects employees’ rights to engage in “concerted activities” for their mutual aid and protection.
In Banner Estrella Medical Center, 358 NLRB No. 93 (2012), the employer established a standard investigation process that included the reading of six introductory statements before each witness interview. One of the six statements was a confidentiality statement instructing the witness that he or she was prohibited from discussing matters related to the investigation until the investigation was complete. The Board determined that the employer failed to establish that its interest in protecting the integrity of the at-issue investigation outweighed the employees’ Section 7 rights because the employer developed a “blanket approach” of reading this statement before every interview. The Board explained that it is the employer’s burden to determine – on a case-by-case basis – whether the circumstances of each specific investigation are such that (1) witnesses need protection, (2) evidence is in danger of being destroyed, (3) testimony is in danger of being fabricated, or (4) there is a need to prevent a cover up. Only when one of these concerns is present will the employer’s interest in protecting the integrity of the investigation outweigh the employees’ Section 7 rights.
As a result of this decision, it would be prudent for all employers – union and non-union – to review their investigation policies, procedures, and forms to ensure that they cannot be interpreted as creating a blanket prohibition against employee discussion of workplace investigations. We suggest that any written policy regarding the confidentiality of investigations be removed from your records or modified to explain that the employer may, at its own discretion, designate an investigation as confidential based on legitimate business needs. Consider each case individually and where you believe that one of the conditions noted above exists, you may implement the policy and tell employees as much. Confidentiality may still be invoked, but employers will need to be more discerning about its use. The Banner Estrella case has been appealed by the Medical Center to the U.S. Court of Appeals for the D.C. Circuit.
b. Employers Required To Bargain over Disciplinary Decisions Where No Grievance Procedure Exists
In a decision that resolved the last of the outstanding two-member cases returned following New Process Steel, the Board found that where there is no collectively-bargained grievance-arbitration system in place, employers generally must give the union notice and an opportunity to bargain before imposing employee discipline such as a discharge or suspension. The Board was careful to note in Alan Ritchey, Inc., 359 NLRB No. 40 (2012), that its decision would apply only in those situations where a union has recently been certified as a bargaining representative, and where the parties have not yet reached agreement on a first collective bargaining agreement or an interim grievance-arbitration process.
The Board held that employee discipline is a term and condition of employment, and a mandatory subject of bargaining. The Board noted, however, that employee discipline warrants special consideration. The Board’s decision only applies to “discretionary” disciplinary action that will impact the terms and conditions of employment, typically suspension, demotion and discharge. Discipline is discretionary if management retains the right to determine the appropriate level of discipline within its sole discretion, and the discipline is not part of a no fault disciplinary or other lockstep progressive disciplinary policy.
The Board also held that an employer need not negotiate to agreement or impasse under these circumstances, but instead, must provide the union with notice of its intention to issue discipline, the nature of the discipline, the information leading to the decision, and offer the union the opportunity to bargain in good faith before issuing the disciplinary action. If there is no agreement, then the bargaining obligation continues after imposition of the discipline. The Board also carved out an exception and held that the notice and opportunity to bargain prerequisite is not necessary in exigent circumstances, such as where an employee’s presence in the workplace presents serious and imminent danger to the employer’s business or other employees.
The Board also held that, because this issue was not previously decided, its decision would be prospective in nature.
c. Elimination of Key Bargaining Tool by Requiring Employers to Collect Union Dues after Expiration of Agreement
In accordance with its decision in Bethlehem Steel, 136 NLRB 1500 (1962), the Board has long held that an employer’s obligation to collect union dues from employee wages terminates upon the expiration of a collective bargaining agreement. In December, the Board reversed that 50 year old precedent! The Board held in WKYC-TV, 359 NLRB No. 30 (2012), that an employer may not unilaterally discontinue dues check off provisions after the expiration of collective bargaining agreements. The Board stated that its decision to reverse its longstanding precedent was prompted by concerns raised by the Ninth Circuit Court of Appeals in an unrelated case that had been ongoing for over 15 years.
Now, like most other terms and conditions of employment, employers must maintain the status quo upon the termination of a collective bargaining agreement with regard to dues check off provisions. This “status quo” must be maintained until either a new agreement or bargaining impasse has been reached.
In reaching its decision, the Board emphasized the general rule that employers must maintain the status quo with respect to mandatory subjects of bargaining upon the expiration of a collective bargaining agreement. The Board concluded that there was no basis to exclude a dues check off provision, which is also considered a mandatory subject of bargaining. The Board reached this decision despite the fact that other exceptions exist, and that for 50 years, dues check off provisions were deemed to fit within those exceptions.
While the Board was careful to note that its decision in WKYC-TV would apply prospectively, this decision will have a significant impact on employers in the context of collective bargaining. Suspending a dues check off provision was a significant weapon in the employer’s arsenal that has now been silenced unless and until the Board’s decision is reversed by a federal appellate court.
d. Employers Required to Compensate Employees Who Pay Extra Taxes on Backpay Awards
In Latino Express, Inc., 359 NLRB No. 44 (2012), the Board began by noting that it was required to periodically revisit and revise its remedial orders “drawing on enlightenment” obtained through experience. The Board went on to hold that employers will be required to compensate employees for any extra income taxes they have had to pay as a result of receiving a backpay award spanning more than one year in a lump sum. The Board also held that it will require an employer ordered to pay back wages to file with the Social Security Administration a report allocating the back wages to the years in which they were or would have been earned.
The Board noted that the additional reimbursement and reporting requirements better serve the remedial purposes of the Act by ensuring those who suffer discrimination are truly made whole for their losses. While the Board’s decision in Latino Express involved employees discharged due to alleged anti-union animus, the Board expressly stated that the additional remedial requirements would apply to all violations that result in a make whole remedy.
e. Protection of Union Political Spending
In United Nurses & Allied Professionals (Kent Hospital), 359 NLRB No. 42 (2012), the Board (with Member Hayes dissenting) appeared to significantly narrow the scope of the U.S. Supreme Court decision in Communication Workers v. Beck, 487 U.S. 735 (1988). The Court in Beck held that the Act does not permit a union, over the objection of nonmember employees, to expend funds collected from employees under a union-security (or “union shop”) provision on activities unrelated to collective bargaining, contract administration, and grievance adjustment. Under Beck, lobbying expenses incurred by the union were not chargeable to non-union members in the bargaining unit who objected.
However, in Kent Hospital, the Board held that lobbying expenses are chargeable to objectors, to the extent that they are germane to collective bargaining, contract administration, or grievance adjustment. How lobbying could be germane to any of these activities is unclear to us, but the Board has paved the way for unions to charge these expenses to nonmember objectors despite the seemingly clear holding in Beck. (The Board itself was apparently unclear on how lobbying could be germane to these activities, and invited input from interested parties on how it should define and apply the “germaneness” standard in the context of lobbying.)
f. The Board Finds Certain Arbitration Agreements Unlawful
Early in 2012, the Board ruled that arbitration agreements that require employees to pursue individual claims violate the Act. In D.R. Horton, Inc., 357 NLRB No. 184 (2012), the Board examined an employer policy that required mandatory arbitration of employee claims on an individual basis, and specifically prohibited class or collective actions. The Board held that such a policy or agreement prohibits employees from engaging in concerted activity in violation of the Act. The Board noted that its decision does not require class arbitration, as long as the policy or agreement leaves open a judicial forum for class or collective claims.
Relying on D.R. Horton, a Board Administrative Law Judge (“ALJ”) similarly concluded that a policy requiring all employees to pursue individual claims, rather than collective actions, and that prohibited employees from discussing their claims violated the Act. In 24 Hour Fitness USA, Inc., (Case-20-CA-035419) (2012), the ALJ concluded that, even though the policy at issue afforded employees the opportunity to “opt out” of the arbitration requirement, it was nonetheless unlawful. The ALJ directed the employer to rescind the policy. Stay tuned, as D.R. Horton has been appealed to the U.S. Court of Appeals for the Fifth Circuit.
g. The Board Requires Employers to Disclose Witness Statements to the Union
In Piedmont Gardens, 359 NLRB No. 46 (2012), the Board reversed 34 years of precedent by holding that the employer will now be required to provide a union representing an employee with witness statements obtained during an investigation of employee misconduct. Overruling the 1978 Anheuser-Busch doctrine, the Board now requires a “balancing test” between the union’s need for the information (weighed heavily by the Board) and the employer’s legitimate and substantial confidentiality interest (weighed not so heavily by the Board). The present Board is apparently not as concerned about the potential for intimidation, coercion, and retaliation that might flow from disclosure of witness statements to the union as was the Anheuser-Busch Board. And in another dramatic change related to union requests for information, in Iron Tiger Logistics, Inc., 359 NLRB No. 13 (2012), the Board held that employers must respond promptly to union requests for information, even when the information requested may ultimately be irrelevant to the union’s representation of employees!
The Board Continues its Social Media Agenda
Last year, we discussed with you the Board’s aggressive social media agenda. Unfortunately, the Board’s rigorous review of cases involving discipline for social media activity continued in 2012. In addition, the Board was very active in reviewing employer social media policies, and in the vast majority of cases found that those policies violated the Act. While the news was not all bad, the Board’s social media cases have signaled a disturbing trend for employers.
The Board’s Acting General Counsel (“AGC”), Lafe Solomon, may be credited with starting the social media blitz. The AGC followed up his first social media summary with two new social media reports in 2012. Unfortunately, the Board has seemed to agree with its AGC’s negative views of employer social media policies in most cases. Below is a summary of the key decisions involving social media and a summary of the AGC’s guidance in this area.
a. Discharge over Facebook Page Found Lawful
Last year we reported on an ALJ decision involving an employee who was discharged for posts he made on his Facebook page. On September 28, 2012, the Board affirmed the ALJ’s decision in Knauz Motors, Inc., 358 NLRB No. 164 (2012). Knauz Motors discharged an employee because of certain Facebook posts made by the employee. The first included “mocking and sarcastic” pictures and comments about a sales event. Apparently, the employee was dissatisfied with the food selection for the event, which included hot dogs and water. The ALJ found that since the food choices could impact the employee’s commissions, which were a term and condition of his employment, the pictures and mocking comments constituted “concerted protected activity” under the Act, and were therefore protected.
The ALJ and the Board took a different view of the second set of Facebook posts, which contained pictures and comments making fun of an accident at a related dealership. The accident involved a 13-year-old boy who was behind the wheel of a vehicle that crashed into a retaining pond. The employee posted pictures of the accident and made some inappropriate comments. The Board affirmed the ALJ’s conclusion that these posts did not constitute concerted protected activity, because there no was connection to the employee’s terms and conditions of employment. Ultimately, the ALJ and the Board held that the employee’s discharge was not a violation of the Act because he was terminated for the non-protected posts, and not the posts regarding the sales event.
The Board also agreed with the ALJ that some of the employer’s policies were overly broad in violation of the Act, including the employer’s Courtesy Policy. The Courtesy Policy provided:
Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image of the Dealership.
The Board (believe it or not) held that the prohibition on “disrespectful” conduct and “language which injures the image or reputation of the Dealership” could be reasonably construed by employees to prohibit protected activity, and therefore was deemed unlawful.
b. Discharge over Facebook Page Found Unlawful
Last year, we also reported on an ALJs decision in Hispanics United of Buffalo, Inc., 359 NLRB No. 37 (2012). Hispanics United was the first ALJ decision regarding employee terminations for social media posts. In December 2012, the Board made Hispanics United its second decision examining protected, concerted activity involving Facebook (following Knauz Motors). The Board held that the employer, a small nonprofit organization in upstate New York, violated the Act when it discharged five employees for criticizing another employee on Facebook. The Board majority stated that it was relying on established precedent to find that the activity was for employee “mutual aid or protection” within the meaning of Section 7 of the Act.
The employees who were discharged were discussing another employee who had often criticized the job performance of others. One of those employees initiated a discussion of the criticism online, and several other employees vented in a thread. The employees that responded essentially stated that the criticism was unfair because of staffing and other concerns. The employee who was the target of the thread complained to the Agency’s executive director, and after an investigation, the employees who engaged in the discussion were terminated for violating Hispanics United’s harassment policy.
The Board stated that to determine whether Section 7 rights are implicated, an employer must consider whether a mutual aid objective is “implicitly manifest from the surrounding circumstances.” Such a vague and ambiguous standard will no doubt lead to more headaches for employers as they attempt to discern the meaning of the Board’s pronouncements in this case.
c. The AGC Social Media Reports
In July 2011, the Board’s Office of General Counsel (“OGC”) issued three Advice Memorandums directing the dismissal of charges, and issued a social media report, summarizing its actions on several charges involving social media. Six months later, in January 2012, the AGC issued a second social media report, which highlighted how quickly the issues surrounding social media in the workplace were developing.
According to the second report, the following common policy provisions may be unlawful because they “chill” employees’ rights under Section 7 of the Act:
In May 2012, the AGC issued his third report on social media. The third report summarizes the AGC’s view on seven social media policies’ compliance with Sections 7 and 8 of the Act. The AGC made clear that policies that are ambiguous as to their application to Section 7 activity, and policies that contain no limiting language or context to clarify that the policy will not interfere with Section 7 rights, will be deemed unlawful. According to the third report by the AGC, the following social media policy provisions could “chill” employees’ rights and are unlawful under the Act:
The third report also expressed the AGC’s view that “disclaimer” provisions that state that policies will be administered in compliance with Section 7 do not necessarily save an otherwise unlawful policy.
The AGC did provide some guidance in the third report, and stated that the inclusion of examples of prohibited conduct could help clarify ambiguities. In addition, certain disclaimer provisions may save an otherwise overly broad policy. The following social media policy provisions were found to be lawful:
The third report also provided a sample social media policy that is lawful in the opinion of the AGC.
Importantly, Section 7 applies to all employers covered by the Act regardless of whether an employer’s employees are represented by a union, and in September, the Board issued two decisions finding certain anti-disparagement policies to be unlawfully overbroad. These cases, and others, demonstrate that the Board seems to agree with the AGC’s view of social media issues. Therefore, for the foreseeable future, the AGC’s guidance in this area should be given careful consideration.
The Board’s Assault on Other Employer Policies
As detailed above, the Board has embarked on a crusade against allegedly overbroad social media policies. The AGC’s social media reports also cast a negative light on a host of employer policy provisions, many of which are not specific to social media. This expansion beyond the realm of social media is a trend that we will be following in 2013. Below is a brief review of two key policies that have already come under fire.
a. Confidentiality Policies
The AGC’s social media reports took a dim view of employer confidentiality policies. As noted above, the AGC found that a policy prohibiting employees from disclosing information of a confidential, sensitive, or non-public nature concerning the employer to anyone without prior approval was unlawful. Certainly, many employers have such policies. In the opinion of the AGC, such policies are overly broad and could be interpreted as prohibiting employees from discussing the terms and conditions of employment. In order to decrease this perceived ambiguity, confidentiality policies should provide context and should clarify what information is confidential in order to avoid running afoul of the Act. In addition, a disclaimer may help an otherwise overly broad policy (i.e., a statement indicating that the policy is not intended to prohibit employees from sharing information with each other concerning their own wages, hours, and conditions of employment).
b. At Will Employment Disclaimers
On October 31, 2012, the OGC issued two Advice Memorandums addressing at-will provisions in employee handbooks. In both cases, the OGC concluded that the specific at-will provisions could not reasonably be interpreted to restrict protected activity and, therefore, were permissible under federal labor law.
The OGC’s guidance followed a controversial decision earlier this year from an ALJ, which held that an at-will disclaimer adopted by an American Red Cross regional unit was unlawfully overbroad to the extent it conveyed that at-will status could never be changed. The Red Cross required employees to sign an acknowledgement that stated, “I further agree that the at-will employment relationship cannot be amended, modified, or altered in any way.” The ALJ found the language to be unlawful because it implied any concerted effort undertaken by employees to alter the at-will status would be futile. The ALJ’s ruling generated significant attention and raised concerns that more challenges to the at-will language commonly included in employee handbooks would follow. The OGC’s recent advice memos, however, provided welcome guidance and served to allay these concerns.
Like 2011, 2012 was a busy year for the Board. Given the outcome of the election in November, we expect that trend to certainly continue in 2013, as will the Board’s decidedly pro union agenda.
While the Board issued a flurry of decisions in 2012, because of the challenges to President Obama’s recess appointments, many of those decisions are, as of this writing, in legal jeopardy. In addition, many of the Board’s controversial decisions have been appealed to the federal courts. How the courts will handle the Board’s 2012 decisions is an issue to follow next year as well.
We will, of course, keep you up-to-date on these important issues and other developments throughout the year on our blog!