Articles Posted in NLRB Decisions

The National Labor Relations Board (NLRB) took two recent actions affecting union representation. In early February, it issued proposed rule changes for representation cases, when employees or unions seek a vote to determine whether employees want to form or join a union for collective bargaining. Existing rules have faced criticism for allowing excessive delay and other inefficiencies. In late March, the NLRB issued a ruling in a dispute between an organization representing college football players and Northwestern University. It found that scholarship players are “employees” within the meaning of the National Labor Relations Act (NLRA), and that they are entitled to vote on union representation.

On February 6, 2014, the NLRB published proposed changes to representation-case procedures. 79 F.R. 7317. The new rules, according to the NLRB, would “remove unnecessary barriers to the fair and expeditious resolution” of petitions for union representation. This would include simplifying and standardizing case procedures, and improving the transparency of the process. The current rules, found at 29 C.F.R. Parts 101-103, have been criticized for allowing a substantial amount of time to pass between a petition by non-union workers and a vote on union representation, allowing employers to pressure employees to vote against the union. The new rules are similar to a proposal first made in June 2011. A district court struck down the rules that resulted from that proposal, finding that the NLRB enacted them without the required quorum. Chamber of Commerce v. NLRB, 879 F.Supp.2d 18 (D.D.C. 2012).

The College Athletes Players Association (CAPA), a labor organization, petitioned the NLRB on behalf of football players receiving grant-in-aid scholarships from Northwestern University, seeking a ruling that the players are “employees” within the meaning of the NLRA. Northwestern argued that the players are not employees, comparing them instead to graduate student assistants who were ruled not to be employees in Brown University, 342 NLRB 483 (2004). The NLRB’s Region 13 Director ruled that the players are employees, and directed that an election take place. Northwestern University, No. 13-RC-131359, decision (NLRB, Mar. 26, 2014).
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The National Labor Relations Act (NLRA) protects employees from retaliation from their employers for union organizing and related “concerted activities.” Courts are constantly reviewing the question of what constitutes protected concerted activity. The growth of social media in recent years has led to numerous disputes over the extent of NLRA protections for online statements and activity. Two recent decisions from the National Labor Relations Board (NLRB) offers the possibility of clarity about the line beyond which the NLRA does not apply. Both cases involved activity on Facebook involving harsh language directed at one or more supervisors, including words that generally get films an “R” rating. The NLRB’s two decisions make an important distinction, seeming to draw the line based on whether the employee’s activity harms the employer.

Two rules have emerged for employees regarding social media posts. The first rule is that statements or discussions via social media, when directed to other employees or intended to spotlight an employment issue, are generally considered to be concerted activity protected by the NLRA. The unsettled question for social media is how far is too far before a statement or discussion exceeds the scope of the NLRA’s protection. The second rule is that employers will continue to push this still-hazy limit, so employees should be prepared and know their rights.

In Pier Sixty, No. 02-CA-068612 (NLRB, Apr. 18, 2013), the NLRB found that an employee’s colorful statements on Facebook were protected by the NLRA. An employee at a catering company reportedly became frustrated during the course of negotiations over union representation. While the employee was working an event, he felt that a supervisor was harassing him. He stepped outside the building and posted an update to his Facebook calling the supervisor a “NASTY M———-R” and a “LOSER,” followed by a call to vote yes on the union proposal. The employee was fired soon afterwards. The NLRB held that the employee’s statements were protected, the generous use of swear words notwithstanding, because they were directly related to ongoing union organizing. It ordered the employee’s reinstatement with back pay.
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The National Labor Relations Board (NLRB) ruled that an employer’s termination of five employees over posts to the social media service Facebook violated the National Labor Relations Act (NLRA). In re Hispanics United of Buffalo and Ortiz, Case No. 03-CA-027872, decision and order (NLRB, Dec. 14, 2012). It rejected the employer’s argument that the employees’ posts violated its zero-tolerance policy regarding harassment of other employees. The ruling affirmed an earlier finding by an Administrative Law Judge (ALJ) that the employees’ posts were concerted activity protected by the NLRA.

Marianna Cole-Rivera and Lydia Cruz-Moore were employees of Hispanics United of Buffalo, Inc. (HUB), a nonprofit organization providing assistance to domestic violence victims and others. The two communicated frequently via telephone and text message, and Cruz-Rivera reportedly criticized other coworkers on a regular basis. Cole-Rivera reportedly received a text message from Cruz-Moore on Saturday, October 9, 2010, when neither person was at work, saying that Cruz-Moore intended to report her concerns about other employees’ performance to HUB’s executive director.

After replying to Cruz-Moore via text, Cole-Rivera posted a message to her Facebook page saying that Cruz-Moore felt that other employees “don’t help [their] clients enough,” id. at 2, and asking for other employees’ thoughts. Four HUB employees, all off-duty, responded with comments on the Facebook post. Cruz-Moore complained to the executive director and provided a printout of the post and its comments. The following Monday, the executive director fired Cole-Rivera and the other four employees for violating HUB’s “zero tolerance” policy towards “bullying and harassment.” Id.
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The relationship between social media and employees’ rights is still a developing field of law, with few definitive rules in place yet. In a recent case demonstrating that uncertainty, the National Labor Relations Board (NLRB) considered the complaint of a person who lost his job due to comments he allegedly posted to the social media website Facebook. The complainant in Karl Knauz Motors, Inc. d/b/a Knauz BMW and Robert Becker alleged that his employer’s social media policies unlawfully prevented him from engaging in concerted activities protected by federal labor laws. While the NLRB ultimately concluded that the firing was justified, it also ruled that the employer’s social media policy was unlawful.

The petitioner, Robert Becker, worked for Karl Knauz Motors, Inc. as a salesperson at its BMW dealership in Lake Bluff, Illinois. Becker’s difficulties with his employer began with an “Ultimate Driving Event” held on June 9, 2010. According to the NLRB’s decision, Becker and other sales representatives met with the general sales manager several days before the event to discuss the sales representatives’ duties. The manager informed them that the company would be providing a hot dog cart, along with cookies and chips, for customers attending the event. Becker and others reportedly expressed concern that this was not appropriate for this type of event, or this type of vehicle. Becker would later testify that the food choice was important because people’s perception of the event would influence sales, which would in turn influence his compensation.

In a separate incident, an accident occurred on June 14, 2010 involving a vehicle at a Land Rover dealership also owned by Knauz. During a test drive, a customer’s son was allowed to sit in the driver’s seat, where he reportedly stepped on a vehicle’s gas pedal by accident. This caused the vehicle to roll over the customer’s foot, then down an embankment and into a pond. Aside from the customer’s foot, no injuries were reported.
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The National Labor Relations Board recently invalidated several sections of Costco’s employee manual, including its social media policy. The United Food and Commercial Workers union filed an unfair labor practices charge, contending the rules violated Section 8(a)(1) of the NLRA because they prohibited protected activities under Section 7 of the NLRA.

The decision is seen as a victory for unions and workers’ rights in the face of an increasing number of these corporate social media policies.

Section 7 gives employees the right to engage in “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”The case is Costco Wholesale Corporation and United Food and Commercial Workers Union, Local 371 (Case 34-CA-012421). At issue was a section in Costco’s employee handbook that said message board comments or social media posts that violated company policy would be subject to discipline up to and including termination.

The three-member panel of the National Labor Relations Board noted any social media rule that violates Section 7 rights would be unlawful. Otherwise, a violation depends on one of the following: The employee could reasonably construe that the language violates Section 7 activity; the rule was formed in response to union activity; or that the rule’s aim is to restrict Section 7 rights.

The panel found that wording prohibiting employees from posting comments detrimental to the company or to a person’s reputation “clearly encompasses concerted communications protesting … treatment of its employees.” However, the panel found a rule prohibiting employees from leave company property during a work shift without the permission of management was not in violation.

New Jersey employment attorneys understand technology plays a critical communications role for a union and its members. Consequently, social media use is increasingly becoming an issue addressed in employee handbooks. In this case, the ruling by the Administrative Law Judge invalidates several sections of Costco’s employee handbook that are likely found in the employment policies of many companies. These include prohibitions against sharing personal health information, personal employee contact information, and information protected by the Family and Medical Leave Act and the Americans with Disabilities Act.

In the last year, the Acting General Counsel for the NLRB has issued three advisory reports regarding corporate social media policies. However, this is the first case decided by the board.

In this case, the National Labor Relations Board ordered Costco to cease and desist from:

-Maintaining social-media provisions that could be interpreted as prohibiting employees from discussing working conditions, wage or other employment issues.

-Maintaining provisions prohibiting employees from posting statements damaging to a person’s reputation.

-Maintaining a social media policy that is overly broad or could be construed as negatively impacting an employee’s collective-bargaining rights.

-Maintaining policies that prohibit an employee from posting negative information about the company.

Our New Jersey employment attorneys continue to see employers run afoul of state of federal laws by developing social media policies aimed at protecting the best interests of the company, without regards to the rights of the workforce.
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