June 2012

On June 25, 2012, the NLRB overruled an ALJ's rejection of a requested "shaming"  order and required that the CEO of a California employer read its order aloud to company employees in both Spanish and English.

In Marquez Brothers Enterprises, found here, the ALJ found that the employer committed multiple unfair labor practices, but concluded that “there is nothing extraordinary about the unfair labor practices committed" and thus did not address the General Counsel's request for an order requiring a remedial notice to be read to employees. Instead the ALJ ordered the more common posting of a notice. The Board, however, disagreed with the ALJ and found that the violations found by the ALJ (including veiled threats, the termination of two pro-union employees, and "an orchestrated effort to coerce all the employees whom it believed had signed union authorization cards into sending revocation letters to the union") were “sufficiently serious and widespread” in their impact to make a notice-reading requirement appropriate in that case. Accordingly, the Board ordered that a remedial notice "be read aloud to the Respondent’s employees by the Respondent’s chief executive officer or, at the Respondent’s option, by a Board agent in that officer’s presence" in English and Spanish.

While such an order by the Board is not unheard of, its adoption by the Board is a relatively recent phenomenon. It is notable in this case because the ALJ had concluded the ULPs were not extraordinary. The lone Republican on the current Board, Member Hayes, wrote in his dissent while he concurred in the findings that the conduct violated the Act, he would not have "impose[d] the extraordinary requirement of  a public reading to remedy them."

On June 11, 2012, NLRB Acting General Counsel, Lafe Solomon, addressed the Connecticut Bar Association, specifically discussing the issuance a complaint in February by Region 28 alleging a multitude of violations arising from the various rules contained in the company's employee handbook.  Among rules alleged to be in violation of the NLRA was an employee acknowledgment that employment was at-will employment and that at-will status only could be altered by a statement signed by the employee and either the executive vice-president or chief operating officer of the company. The Acting General Counsel stated his view language in an employee acknowledgment disallowing the alteration of the employment at-will relationship was unlawful because it implied a futility of unionization and failed to acknowledge that a collective-bargaining relationship could affect the at-will relationship.  Another description of Solomon's statements can be found here.

Though the case has been settled and the main attention has been the at-will employment issues, the Complaint is troubling because of the multitude of allegations that a variety of seemingly unremarkable policies were alleged by the Board to violate the Act.  The allegedly offending policies included:

"Avoid commenting on [Company] or any [Company] location;"

"[r]efrain from posting images of [Company's] locations or facilities or displaying [Company] logos;"

"[y]ou have a duty to report any known or suspected violation of this Code, including any violation of the laws, rules, regulations or policies that apply to [Company];"

the classification of "training materials" and "personnel information" as confidential; "[u]nauthorized disclosure or use of any confidential information about Hyatt, its associates, its clients or guests . . . you have learned through, or as a result of, your employment at [Company] ;"

"[p]articipating in civic or professional organization activities in a manner whereby confidential company information is divulged;"

"revealing confidential data to anyone;"

"misstating revenues, expenses or assets;"

"interfering with or hindering work schedules, failing to work a shift as scheduled;"

"leaving your department or work area without the permission of your supervisor or being in locations other than your assigned work areas;"

"refusing to cooperate with a hotel investigation or failing to report a violation of hotel policies and procedures;"

"[a]ny requests for information regarding the business of the hotel or related matters are to be directed to the General Manager or Director of Sales;"

"making derogatory or unfounded statements about [Company], [or] its employees;"

"[y]ou agree that you shall not, at any time, disparage [Company] or any of its respective subsidiaries, affiliates, directors, officers, or employees."

Some of the positions asserted about confidential information are not new – the Board has long asserted that employees cannot be prohibited from disclosing wage information and that overbroad non-disclosure policies violate the Act. However, the breadth of policies alleged to violate the law combined with the Acting General Counsel's comments should serve as warning that the current Board is taking positions trying to assert its role in the regulation of non-unionized workforces.

Are graduate student assistants seeking to be represented by a union employees under the National Labor Relations Act?  That is a question the NLRB is intent on answering (again).  The Board has granted review in two cases addressing the issue.  The Board also invited briefs from interested parties, asking, among other things, whether its 2004 decision in Brown University should be overruled. In that case the Board held that graduate student assistants typically were not considered statutory employees. The Brown decision overruled a 2000 decision in New York University, which held that graduate assistants were statutory employees.

This is yet another example of how the once relatively obscure federal agency is taking steps (in this case potentially flip-flopping positions) to solidify its position as the “champion” of employee rights.

The United States Supreme Court ruled today that it is unlawful for a public employee union to impose a fee hike to cover political expenses without providing its non-members notice and the opportunity to opt-in to paying the fee.

The lawsuit originally was brought by California workers who were not union members, but who still had to pay dues for the union’s representational activities pursuant to an agency shop agreement.  In this context, unions must provide what is referred to as a Hudson notice, which explains the fees and provides the non-union employees a chance to object.  While the union sent out a notice when it sought annual dues, it failed to notify the nonunion members of extra fees imposed for political activities aimed at defeating several ballot measures in California.  The nonunion workers argued that the union’s activities violated their freedom of speech rights under the First Amendment.

How does the First Amendment come into play?  The First Amendment’s freedom of speech guarantee necessarily includes the right not to speak.  Thus, for example, the First Amendment does not permit a public-sector union to adopt procedures that have the effect of requiring objecting nonmembers to lend the union money to be used for political, ideological, and other purposes not germane to collective bargaining.  By not providing nonmembers the opportunity to object, the union was in effect requiring that they support its political activities.

Siding with the nonunion workers, seven of the nine Justices held that the union should have provided another Hudson notice when it imposed the extra dues.  However, the majority opinion took it a step further:  Five of the nine justices agreed that the fee should be presented on an opt-in basis, as opposed to requiring the nonmembers to unilaterally opt-out.

Barnes & Thornburg’s Labor & Employment Department will issue an Alert with a more detailed analysis in the coming days.

Mississippi Governor Phil Bryant told a business group Monday he is “concerned” over the UAW's efforts to organize Toyota and Nissan auto manufacturing plants in his State.  The Memphis Commercial Appeal quoted the Governor saying, “The automobile industry is very fragile, and there's such great competition out there. That's what worries me. If the union involvement becomes active in the southeastern automobile corridor, what does it do to industry? And I just don't see a positive outcome to that.”

The full article can be found here.

The National Labor Relations Board (NLRB) has launched an interactive website that describes the rights of employees under the Nation Labor Relations Act (NLRA) to engage in protected concerted activity even if they are not in a union.

The page, which is available at www.nlrb.gov/concerted-activity, tells the stories of more than a dozen recent cases involving protected concerted activity. The narratives can be viewed by clicking points on an interactive map of the United States.  Among other cases, the webpage tells the story of a construction crew fired after refusing to work in the rain near exposed electrical wires; a customer service representative who lost her job after discussing her wages with a coworker; and a paramedic fired after posting work-related grievances on Facebook.

The webpage is just another example of how the once relatively obscure federal agency is taking steps to solidify its position as the “champion” of employee rights in both the union and non-union context.  Expect additional efforts by the NLRB in the coming months to broaden its “appeal” to employees within non-unionized workforces.

Political pollster Gallup looked at the effect of union membership on probable presidential election voting in a recent poll, finding that the majority of union members say that they would vote for President Barack Obama over Republican nominee Mitt Romney. Of union members, which made up about 12 percent of the registered voters polled, 58 percent indicated that they would vote for Obama, while 35 percent favored Romney.  This is a significant difference from non-union members, who favored Romney over Obama, 48 percent to 44 percent. 

Union members have traditionally favored Democrats more than their non-union counterparts, so this data is not surprising. But with the presidential race projected to be close, it will be interesting to see how the support of union workers and the willingness of unions to spend significant money in support of President Obama’s reelection bid affects the President’s policy decisions as the election nears.

See the full Gallup poll analysis here.

As we previously reported, a judge with the D.C. District Court invalidated the Board’s  controversial “ambush” election rules last month on essentially a technicality, finding that the three-member Board did not establish a quorum prior to voting on the rules because Member Brian Hayes did not participate in the voting.  The Board responded to that ruling this week arguing that Member Hayes was in fact present at the voting (which occurred electronically) because of his interactions with the Board’s internal electronic system on the day of the vote.  The Board requested that the court reconsider its ruling in light of this fact and reinstate the rules until a final decision on their legality is issued.

The Board’s motion is an interesting look inside the voting and opinion-writing process of the NLRB and presents difficult questions of what it means to be “present” when voting takes place electronically.  But like the court’s opinion, the Board’s motion concentrates only on the voting technicality and not the broader issue of the legality of the actual rules. The rules remain suspended for now, but it remains to be seen whether the D.C. District Court will be willing to look beyond the voting technicality and directly address the legality of the ambush rules.

The Board’s motion is available here.

See our previous coverage of this issue here.