Articles Posted in NLRB Decisions

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects workers’ right to engage in various activities related to organizing for the purpose of collective bargaining. In early 2016, an administrative law judge (ALJ) ruled in favor of a worker who alleged that his employer terminated him, in part, because of critical messages posted to the social media platform Twitter. The employer claimed that the employee had violated its social media policy. The ALJ ordered the employee’s reinstatement and further ordered the employer to rescind its social media policy and other policies, finding them to be in violation of the NLRA. The National Labor Relations Board (NLRB) affirmed the ALJ’s ruling. Chipotle Services LLC et al., No. 04-CA-147314, ALJ dec. (NLRB, Mar. 14, 2016); 364 NLRB No. 72 (Aug. 18, 2016).

Employees’ “right to self organization,” to collective bargaining, and to “concerted activities” directed towards these goals are commonly known as “Section 7 rights,” after § 7 of the NLRA, 29 U.S.C. § 157. An employer engages in “unfair labor practices” when it “interfere[s] with” or “restrain[s]” an employee’s efforts to exercise those rights. NLRA § 8(a)(1), 29 U.S.C. § 158(a)(1). The internet, social media, and other new communications technologies have vastly expanded opportunities for concerted activities protected by § 7. The NLRB has addressed numerous disputes over which, if any, restraints employers may place on employees’ use of social media.

The respondent in the Chipotle case operates a nationwide chain of restaurants. According to the ALJ’s ruling, it required employees to abide by a “social media code of conduct” that prohibited “disparaging, false, misleading, harassing or discriminatory statements about or relating to” the employer and other parties. Chipotle, ALJ dec. at 4. The employer stated that it reserved the right to “ take disciplinary action, up to and including termination,” for violations of this policy. Id.

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The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of workers to organize for the purpose of collective bargaining with their employers. It prohibits discrimination or retaliation for engaging in union-related activities, as well as interference with those activities. The National Labor Relations Board (NLRB) is responsible for enforcing these protections, as well as ruling on disputes between employees and employers. A recent NLRB decision found that an employer engaged in unfair labor practices by terminating an employee for testifying before a legislative committee. Oncor Electric Delivery Co., 364 NLRB No. 58 (Jul. 29, 2016). The employer argued that the employee’s testimony was an individual act, rather than “concerted activity” protected by the NLRA. It further claimed that termination was justified because of “malicious falsehoods” in the employee’s testimony. Id. at 2. The NLRB rejected the employer’s arguments and ruled in the employee’s favor.

Section 8(a)(3) of the NLRA prohibits employers from using disparate treatment or other forms of discrimination to “encourage or discourage membership in any labor organization.” 29 U.S.C. § 158(a)(3). In order to demonstrate a violation of § 8(a)(3), an aggrieved employee must establish that they were engaging in activity protected by the NLRA, including both direct union activity and “concerted activity.” See NLRA § 7, 29 U.S.C. § 157. They must also show a causal connection between the employee’s protected activity and the employer’s adverse action. The NLRB calls this a Wright Line analysis, after Wright Line, 251 NLRB 1083 (1980), enfd. 662 F.2d 899 (1st Cir. 1981), cert. denied 495 U.S. 989 (1982).

The Wright Line analysis requires an employee to establish four elements:  (1) their conduct was protected under the NLRA; (2) their employer knew about or suspected the employee’s conduct; (3) the employer “harbored animus” toward the employee because of the conduct; and (4) the employer took an adverse action against the employee because of this animus. Oncor at 22.

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The digital newsroom at the cable and satellite news network Al Jazeera America (AJAM) voted on whether to unionize in late September 2015. A tally of the votes in early October showed that the vote was overwhelmingly in favor of unionizing, with 32 people voting in favor and five voting against. The journalists will become members of the News Guild of New York (NGNY), which has represented print journalists since the 1930s and has recently begun a major effort to support digital journalists who want to organize. Digital journalists at web publications like Salon, Gawker, and Vice have also recently voted to unionize. AJAM opposed the journalists’ unionization vote and has announced its intention to dispute the eligibility of some who participated in the vote.

The National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., protects the right of employees to organize in order to engage in collective bargaining with the management of their employers. See 29 U.S.C. § 157. The law applies to most employers in the country, defining “employer” as almost any person or organization that employs people, except for the U.S. government, state and local governments, Federal Reserve Banks, and businesses subject to the Railway Labor Act (45 U.S.C. § 151 et seq.). 29 U.S.C. § 152(2). Labor unions, when they act as employers, are also subject to the NLRA. The law created the National Labor Relations Board (NLRB) to enforce its provisions.

AJAM, which is headquartered in Manhattan, launched in 2013 as a competitor to cable news networks like CNN, Fox News, and MSNBC. On September 3, 2015, a majority of employees in the network’s digital newsroom asked the company to voluntarily recognize the NGNY as their representative for collective bargaining purposes. Employees described “a troubling lack of transparency, inconsistent management, and lack of clear redress” from their employer. After several weeks, the company reportedly declined to grant the requested recognition to the union, which led to the employees’ vote.

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The National Labor Relations Board (NLRB) issued a final rule in December 2014 addressing the process by which workers may vote on whether or not to form a union or seek representation by an existing union. 79 Fed. Reg. 74307 (Dec. 15, 2014). The agency, which is charged with enforcing the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq., states that the new rule “remove[s] unnecessary barriers to the fair and expeditious resolution of representation questions.” The rule appears to increase unions’ leverage in disputes with businesses over questions of worker representation. Critics call it the “quickie election” rule, and several business organizations are already challenging it in court.

Employees have the right under the NLRA to organize or choose representatives for collective bargaining purposes, or to refrain from this sort of activity. 29 U.S.C. § 157. Employers are prohibited from “interfer[ing] with, restrain[ing], or coerc[ing] employees in the exercise of [these] rights.” Id. at § 158(a)(1). If workers and employers cannot reach an agreement regarding the terms of organizing or representation, the NLRB is authorized to resolve the dispute. Id. at § 159. The U.S. Supreme Court held that the NLRB has broad discretion in these types of disputes. 79 Fed. Reg. at 74308, citing NLRB v. A.J. Tower Co., 329 U.S. 324, 330 (1946), et al.

The NLRA establishes a four-step process for representation disputes: (1) an employee, labor organization, or employer files a petition with the NLRB; (2) the NLRB, or an NLRB regional director, holds a hearing to determine if the petition presents a representation question; (3) an NLRB unit conducts a secret-ballot election; and (4) the NLRB certifies the election results. The statute only provides the basic steps, though, and the NLRB’s experience has shown problems “which cannot be solved without changing current practices and rules.” 79 Fed. Reg. at 74308.
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The National Labor Relations Board (NLRB) recently affirmed a prior ruling holding that it has jurisdiction to enforce the National Labor Relations Act (NLRA), 29 U.S.C. § 151 et seq. in a dispute involving a Michigan casino operated by an Indian tribe. Soaring Eagle Casino and Resort, et al, No. 07-CA-053586. An administrative law judge (ALJ) ruled that the casino violated a former employee’s rights under the NLRA. The tribe, the Saginaw Chippewa Tribal Nation, has denied that the NLRB has jurisdiction over it because of tribal sovereignty. The U.S. government recognizes hundreds of Indian tribes as “domestic dependent nations,” with a degree of sovereignty over their own members. Tribal law is incredibly complicated, but the question presented in this case is relatively simple: does the NLRA, a federal statute, apply to a business owned and operated by an Indian tribe? At least one federal circuit court of appeals has held that it does, and courts have held that other statutes are binding on tribes.

A former employee of the Soaring Eagle Casino filed a complaint with the NLRB in 2011, claiming that she was fired for soliciting support among her co-workers for a union. An ALJ ruled in the employee’s favor in March 2012, dismissing the tribe’s argument that the NLRA should not apply to activities at the casino. The casino is located on land that belongs to the tribe under treaties ratified in 1855 and 1864, but the complainant argued that because the casino is not “an essential Government operation of the Tribe,” it should be subject to the NLRA. Soaring Eagle, ALJ Decision at 7 (March 26, 2012).

The ALJ noted that statutes of “general application” may apply to individual tribal members, Fed. Power Comm’n v. Tuscarora Indian Nation, 362 U.S. 99 (1960), and that the NLRB has found the NLRA to be such a statute. He concluded that the casino is engaged in commerce as defined by the NLRA. 29 U.S.C. §§ 152(2), (6)-(7). Prior cases have reached similar decisions. The D.C. Circuit Court of Appeals held that the NLRA applies to a casino operated on tribal land in San Manuel Indian Bingo and Casino v. NLRB, 475 F.3d 1306 (D.C. Cir. 2007). Another court held that the Occupational Health and Safety Act applies to commercial activities on tribal land. Donovan v. Coeur d’Alene Tribal Farm, 751 F.2d 1113 (9th Cir. 1985).
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Adjunct professors, generally defined as non-tenure-track and part-time, are becoming increasingly common at two- and four-year colleges and universities around the country. As their numbers grow, however, they are struggling with a lack of job security, low pay, and few benefits. Some of them are successfully demanding better treatment, and several unions are offering their support and assistance. They face some difficult legal obstacles, however, including Supreme Court precedent that limits the applicability of the National Labor Relations Act (NLRA) and claims by some schools that more recent Supreme Court decisions allow them to prevent their adjunct professors from holding union elections.

An article published by Al-Jazeera America in July 2014 describes the experiences of several adjunct professors and describes how faculty employment has changed in recent years. Approximately 30 percent of the 1.8 million faculty members employed by U.S. colleges and universities hold tenure-track positions, meaning that their position offers them the possibility of promotion to “full” professor with a very high degree of job security. Only 24 percent of faculty members actually have tenure, a decrease from about 45 percent in the 1970s.
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