NLRB Effectively Scraps Plans (For Now) To Pursue Notice Posting Rule By Deciding Not To Seek Review By U.S. Supreme Court
The National Labor Relations Board (NLRB) has suffered a series of setbacks recently at the hands of federal judges. In December, the Fifth Circuit Court of Appeals largely struck down the NLRB's prohibition on class action waivers in arbitration agreements. Now, on January 6, 2014, the NLRB announced that it won’t seek Supreme Court review of two U.S. Court of Appeals decisions invalidating its Notice Posting Rule, which would have required most private sector employers to post a notice informing employees of their right to organize. The deadline for seeking Supreme Court review passed January 2.
The legal effect of this “non-event” is that it allows to stand two appellate court decisions that invalidated NLRB's 2011 adoption of a rule. In May 2013, the U.S. Court of Appeals for the District of Columbia Circuit held in National Ass'n of Manufacturers v. NLRB, 717 F.3d 947 (D.C. Cir. 2013) that requiring employers to post the statement of rights under the National Labor Relations Act (NLRA) would be inconsistent with Section 8(c) of the act, which essentially gives employers the right to speak freely to their employees so long as the communications aren’t coercive. The Court also held that NLRB lacked authority to promulgate the regulation, because it would have effectively modified the federal statutory time limit for filing unfair labor practice charges. A month later, the Fourth Circuit ruled against the NLRB and sustained a second challenge to the regulation in Chamber of Commerce v. NLRB, 721 F.3d 152 (4th Cir. 2013).
Had the rule gone into effect, the impact on employers who failed to post the notice could have been severe. While the NLRB doesn’t audit employers and can’t assess fines or penalties, the consequences of not posting the notice could have included: (1) extending the time limit for employees and unions to file charges with the NLRB, and (2) a presumption that the failure to post the notice constituted "evidence of unlawful motive” in an unfair labor practice case involving other, unrelated alleged violations of the NLRA.
The More Things Change...
Technically, the notice rule is invalid only in the D.C. Circuit and the 4th Circuit, although it is difficult to imagine that NLRB will actively seek to enforce the rule elsewhere in the country given its defeats in those jurisdictions. But the NLRB could still choose to pursue the rule, possibly even in a different form, sometime in the future.
It is also important to note that the NLRB's decision to abandon its current litigation involving the enforceability of its posting rule does not change other areas of federal labor law. These include employees’ substantive rights to organize, or prohibitions against actions by employers that “chill” employee rights to engage in concerted, protected activity. These include the right to:
- Organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
- Form, join or assist a union.
- Bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
- Discuss terms and conditions of employment or union organizing with co-workers or a union.
- Join with one or more co-workers to improve wages, benefits and other working conditions.
- Choose not to do any of these activities, including joining or remaining a member of a union.
The invalidation of the NLRB Notice posting rule also does not affect other posting rules, such as the one issued by the Department of Labor's (DOL) Office of Federal Contract Compliance Programs (OFCCP). That rule requires federal contractors to post workplace notices informing workers of their rights under the NLRA, although this rule is being challenged as well: on December 8, 2013, the National Association of Manufacturers filed a complaint with the trial court for the District of Columbia. That lawsuit seeks declaratory, injunctive and other relief, alleging violations of the First Amendment’s guarantee or the right to speak (and not to speak), challenging the OFCCP’s authority to promulgate such a rule, and on the same grounds as the D.C. Court of Appeals invalidated the NLRB’s notice posting rule. National Association of Manufacturers v. Perez, D.D.C., No. 13-cv-1998, complaint filed 12/18/13.
Stay tuned for further developments on this front right here at Stoel Rives World of Employment.
Once again, federal courts have halted efforts by the current National Labor Relations Board ("the Board") to expand its regulatory reach. Earlier this week, in National Association of Manufacturers v. NLRB, the Court of Appeals for the District of Columbia Circuit struck down the Board’s controversial attempt to require virtually all employers to post a notice advising employees about the requirements of the National Labor Relations Act ("the Act") and the sixty years of interpretations of the federal labor laws.
The Board’s notice-posting rule has had a long and contentious history. The original petition was filed in 1993, but it was not until 2010 when the Board, by then with a majority of members appointed by President Obama, issued a proposed rule. The final rule was published in August, 2011, and litigation challenging the Board’s authority began almost immediately. As we have reported before, the Board had only mixed success. One district court upheld the rule only in part, and another struck down the rule completely. While those cases were on appeal, the posting requirement was stayed pending completion of judicial review.
In this week's opinion the D.C. Circuit court rejected the rule in its entirety. The unanimous ruling concluded that the rule interfered with employers’ free speech rights, by requiring them to offer a Board-mandated message with which they might not agree. Section 8(c) of the Act bars the Board from considering non-coercive employer speech as evidence of an unfair labor practice, but the Board’s rule would treat the failure to post its notice as an unfair labor practice.
Two of the panel’s three judges would have gone further, specifically rejecting the claim that the notice posting rule – never required in the previous sixty-four years of the Act – was authorized by Section 6 of the Act, which permits the Board to carry out the Act. The court readily concluded that while the notice-posting rule may be seen as “prophylactic,” there was nothing about it that was necessary to carry out the Act’s substantive provisions.
The Board has not yet reacted to this defeat, and what its next steps are remain unclear. Given the breadth of the Circuit court’s ruling, it appears doubtful that the Board could revise its rule to comply with the court’s analysis. Equally unknown is whether the Board will seek review by the United States Supreme Court.
For employers, at least one reaction does seem clear: it is unlikely that employers will be required to post the NLRB’s notice any time soon, if ever. The court vacated the rule, so the rule is simply without effect unless the court’s decision is reversed. (Federal contractors should remember, however, that they face an independent obligation to post a similar notice, as we reported. That obligation remains in full force. Moreover, the implications of the court’s opinion are potentially far-reaching, and the court’s analysis may call into question numerous posting requirements under other federal statutes.
If you have questions concerning the requirements to post federal labor law advice, or any other posting requirement, please contact your Stoel Rives labor & employment attorney.
We continue our recent end-of-year postings (on new California employment laws and things every employer should resolve to do in 2013) with an update on recent cases by the National Labor Relations Board ("NLRB" or "Board"). In late December, 2012, the NLRB issued a series of controversial decisions which from an employer’s perspective cannot be considered Christmas presents. While some of these cases impact only narrow circumstances, each of the decisions dramatically changes the law, always in ways adverse to employers.
The Board's December 2012 Decisions
In Alan Ritchey, Inc., the Board created an entirely new obligation for employers operating a workplace where a union has been recognized or certified, but no collective bargaining agreement has yet been agreed to. In this setting, the Board concluded, an employer must notify the union and provide it with an opportunity to bargain over individual discretionary discipline before the discipline is imposed. The Board made clear that this obligation requires sufficient advance notice for meaningful bargaining. Moreover, the employer must respond to union requests for information regarding the discipline before such meaningful bargaining can occur. The Board dismissed concerns that the new obligation it had created would be unduly burdensome for employers, suggesting that there may be circumstances in which an employee could be removed from a job prior to bargaining, when leaving employee on the job might present “a serious imminent danger to the employer’s business or personnel.”
In WKYC-TV, Inc., the Board reversed fifty year old precedent and concluded that even after a collective bargaining agreement contract has expired, the employer remains obligated to collect union dues. The general rule has long been that when a collective bargaining agreement expires, the employer must continue to abide by the contract because its terms and conditions represent the status quo, and the employer is not entitled to change the status quo until the parties have reached a new agreement or have bargained to impasse. For fifty years, one of the few exceptions to that rule has been the so-called “dues check off,” which enables employees to pay their union dues through payroll deduction. Recognizing that under the National Labor Relations Act the underlying obligation for employees to be members of the union expired with the expiration of the collective bargaining agreement, the Board had long held that the obligation to collect dues for the union similarly expired. In WKYC-TV, the Board concluded that there was no relationship between the employees’ obligation to maintain union membership, and the employers’ act of collecting dues to pay for their membership. The Board then held that employers must continue to collect dues for the union.
The Board also issued decisions that will affect a more limited number of employers. In Chicago Mathematics & Science Academy, the Board concluded that it had jurisdiction over a “public charter school” operated by a non-profit corporation. In Latino Express, the Board changed various aspects of how it implements back pay awards. If these issues are of concern to you, please contact your Stoel Rives labor lawyer.
Finally, in American Baptist Homes of the West d/b/a Piedmont Gardens, the Board overruled a 35-year old precedent and concluded that employers were not entitled to keep witness statements confidential from a requesting union. Under the Act, employers have the obligation to furnish the union with information relevant to employees’ terms and conditions of employment. This includes information relevant to specific instances of discipline, including information pertaining to witnesses to the incident leading to discipline. Since the late 1970s, however, the Board had recognized that this obligation did not extend to formal witness statements collected by an employer, where an employee had been promised confidentiality and reviewed and approved the witness statement. In Piedmont Gardens, the Board rejected this rule, instead concluding that witness statements are merely another type of confidential information, about which employers must balance their confidentiality concerns with the union’s need to review the information. Even when the employer has legitimate confidentiality concerns, the employer must be willing to bargain with the union about a possible accommodation to address the union’s need for the information. The Board was unconcerned about the possibility for intimidation or coercion of witnesses, in the absence of clear proof.
What Do These Decisions Mean For 2013?
Each of these decisions is a radical departure from existing law, as the Board implicitly acknowledged. In all three, the Board expressly overruled prior case law. Moreover, the Board admitted that it would work an injustice to apply the decisions in Alan Ritchey, WKYC-TV and Piedmont Gardens retrospectively. Thus, the new obligations created in those cases will only be applied to cases occurring after the decisions were issued.
Prospective application is cold comfort to employers now attempting to deal with these cases on an ongoing basis. The Alan Ritchey decision provides little guidance as to what might amount to the “exigent circumstances” preventing removal of the employee prior to the bargaining the Board now requires. Moreover, the decision is unclear as to the extent and duration of that bargaining. The Board did not address, for example, the delay that could be caused by responding to union information requests prior to such bargaining. Perhaps even more troubling, the Board seemed unconcerned about the fundamental revision it was making to the terms and conditions of employment it ordered for affected employees. Even though never yet covered by any collective bargaining agreement, these at-will employees were no longer truly at-will employees.
WKYC-TV offers no offset for the bargaining leverage taken away from the employer, which must now continue to provide financial support to the union with which it is involved in contract negotiations, regardless how acrimonious those negotiations might be. In Piedmont Gardens, the Board appeared unwilling to give any credence to the notion that bargaining unit employees may face coercion or retribution from their union or their pro-union co-workers if their identity must be revealed to the union.
Finally, employers must carefully consider what the Board’s actions imply for what may be in the future. The Obama Board has demonstrated a complete willingness to reverse decades-old precedent, so long as overturning that precedent helps unions. The recent Board cases emphasize that employers dealing with unions are entering an era of unprecedented uncertainty. For example, Alan Ritchey arose only in the context of a newly certified union, bargaining for its first contract. Will the Board extend Alan Ritchey to cases arising after a collective bargaining agreement has expired, before a successor agreement has been finalized? Given the Obama Board’s willingness to change well-settled rules, employers should proceed continuously when determining their next steps. If you face any of the issues raised by these recent Board actions, you should your contact your Stoel Rives labor lawyer.
11th Circuit Disagrees With NLRB And Finds Nurses Are "Supervisors" In Lakeland Health Care Decision
Several weeks ago the U.S. Court of Appeals for the 11th Circuit weighed in on the ongoing debate in labor law over the definition of who is a “supervisor,” and therefore not eligible to join a union, under the federal National Labor Relations Act (“NLRA”). The opinion, Lakeland Health Care Associates , is but the latest installment in an area of labor law that has been evolving over at least the past decade. While this line of cases, including Lakeland Health Care, are specific to the “supervisor” status of nurses working in the residential care industry, the relevant legal tests are the same for all industries. Employers who may wish to oppose unionization efforts among employees it believes are supervisors will therefore want to continue to pay close attention to these cases to see what could be done to maximize the chance that the National Labor Relations Board (“NLRB” or “Board”) would also find those employees are supervisors.
LPNs Supervise Other Employees, But Are They “Supervisors” Under The NLRA?
As with many things in labor law, determining who is a “supervisor” is rarely straightforward: simply giving someone the title of “supervisor” is never enough. In many cases employees may have only partial supervisory authority—the issue in cases like Lakeland Health Care is whether the employees had enough supervisory authority to be “supervisors” under the NLRA.
Lakeland Health Care operates residential care facilities (until recently known commonly as “nursing homes”). Consistent with industry-wide practice, Lakeland Health Care staffs its facility primarily with Certified Nursing Assistants (“CNAs”), who perform most of the day-to-day work providing physical care to residents—such as feeding, dressing, bathing, turning, etc.—and charge nurses, usually Licensed Practical Nurses (“LPNs”) or sometimes Registered Nurses (“RNs”), who provide basic medical care to residents such as administering medication, inserting or monitoring intravenous lines, and performing blood draws. Also consistent with industry practice, the RNs and LPNs have general day-to-day supervision over the CNAs with whom they work each shift, but do not have independent hire/fire authority.
Section 2(11) of the NLRA and related case law has a very detailed and complex definition of who is a “supervisor.” To summarize, a “supervisor” is any employee who has the authority to hire, fire, discipline, or assign work to other employees, or to effectively recommend any of those actions, or who “responsibly direct[s]” other employees in their day-to-day work. The supervisor must also use “independent judgment” in performing those supervisory functions and not merely report employee conduct to higher level managers to take action. Those who meet the "supervisors" tests are not "employees" eligible to organize into unions under the NLRA.
After reviewing the testimony of company witnesses, and employee handbooks and written job descriptions, the 11th Circuit concluded, in contrast to the NLRB, that the Lakeland Health Care LPNs were supervisors under that NLRA definition. Specifically, the Court found that even though LPNs could not hire or fire CNAs, they could independently issue them written and verbal coaching (i.e., discipline) and assign work. The Court also found that LPNs “responsibly directed” CNAs in their day-to-day work in that the LPN ultimately could be held responsible, and disciplined, if the CNAs failed to provide adequate care to residents. The Court found that the LPNs exercised sufficient “independent judgment” in performing all of these functions with respect to CNAs.
A Brief Recent History Of “Supervisor” Status
The supervisory status of charge nurses in the residential care industry has been the subject of much labor litigation over the past 10 years (perhaps because that industry has specifically been targeted for organization drives by many major national and local unions). While the reasoning in Lakeland Health Care summarized above may sound straight-forward, other cases with nearly identical facts have reached very differently results. These differing outcomes make it difficult for employers to know when employees are supervisors, and appear to be largely influenced by two factors.
First, the NLRB’s own interpretation of the law can change dramatically over time depending on whether a pro-union Democrat or pro-business Republican is President. For example, in 2006 the Bush-era Board issued employer-friendly decisions that broadly applied the “supervisor” exception in its Oakwood Health Care “trilogy” (also involving the status of charge nurses in residential care facilities). In so doing, Oakwood Health Care departed from Clinton-era NLRB decisions that had made it much more difficult to show that employees like LPNs are “supervisors.” In recent years, the Obama Board has distinguished Oakwood Health Care to turn back the clock to the broader Clinton-era interpretations of “supervisor.” Perhaps most difficult, the NLRB rarely outright reverses earlier opinions, but instead tries to find subtle factual nuances to harmonize its decisions, even though the different outcomes sometimes seem to be based on very similar factual patterns.
Second, there is also tension between the (generally pro-union) NLRB and the federal circuit courts, which have jurisdiction to reverse those decisions and may tend to be more pro-employer. For example, the 11th Circuit in Lakeland Health Care specifically held that the employer must only show that the LPNs have the authority to perform the supervisory functions (through written job descriptions, handbooks, and the testimony of managers), not that they demonstrate a practice of actually having used that authority in specific cases. That holding may be a departure from recent cases where the Board found under virtually identical facts that charge nurses were not supervisors, because, even though written policies and job descriptions showed they had supervisory authority, they did not actually discipline CNAs, or did not do so often enough.
Back To The Future: More Conflicting Decisions To Come?
It will be interesting to see how the Obama Board will respond to the 11th Circuit’s opinion in Lakeland Health Care. As we have blogged about repeatedly, the current Obama Board has been very active, tends to be pro-union, and is not afraid of taking positions potentially at odds with federal courts, even the U.S. Supreme Court. And the NLRB could only be emboldened now that President Obama has won re-election. It is therefore difficult to see how this tug-of-war will play out. Maybe the only thing that is certain is that more fireworks are likely over the next few months and years in this area.
In the meantime, Lakeland Health Care may offer some help to employers who wish to oppose unionization efforts involving potentially supervisory employees. While circuit court opinions are not technically binding on the NLRB or its regional offices, they can be persuasive authority. Also, while this line of cases is particularly relevant for employers like Lakeland in residential care, the “supervisor” tests are the same everywhere. Employers in all industries may wish to pay particular attention to the weight the 11th Circuit gave to the handbooks and written job descriptions, which helped show that the LPNs in that case had the necessary supervisory authority, and revise their own written job descriptions if needed. If you find yourself in an NLRB hearing involving the supervisory status of employees, the quality of your written job descriptions and handbooks could help make the difference in proving your case.
On Halloween, the National Labor Relations Board (“Board”) General Counsel’s Division of Advice handed out a rare treat to employers by issuing two Advice Memos (Mimi's Café, Case No. 28-CA-0844365 and Rocha Transportation, Case No. 32-CA-086799), deeming two particular (and common forms of) at-will employment policies contained in employee handbooks lawful under the National Labor Relations Act (the “Act").
Earlier this year, an Administrative Law Judge frightened many employers by ruling a particular company’s “at-will” policy violated the Act because it theoretically could make employees believe that they could not form a union or otherwise advocate to change their at-will employment status. That challenged policy stated, “I further agree that the at-will employment relationship cannot be amended, modified or altered in any way.” The case, American Red Cross Arizona Blood Services Division, Case No. 28-CA-23443 (February 1, 2012), was settled before the NLRB could review it on appeal.
The Division of Advice’s Halloween memoranda distinguished American Red Cross case from Mimi's Café and Rocha Transportation – noting that the at-will policy in American Red Cross used the personal pronoun “I” (“I further agree that the at-will employment relationship cannot be amended, modified or altered in any way”), which as written essentially constituted an impermissible waiver of any right of employees to try and change at-will status (i.e., to try to form a union). The Division of Advice also noted that the policy in American Red Cross declared that the at-will employment relationship could never be modified under any circumstances whatsoever, which could be interpreted as chilling employees’ rights under the Act to engage in protected concerted activity such as forming a union. Finally, the Division of Advice, perhaps dismissively, noted that American Red Cross had settled before getting to the Board level.
In contrast, in the two cases and policies analyzed by the Division of Advice’s Halloween memoranda, one employer’s handbook specifically provided for possible changes to an employee’s at-will employment status if made in writing and signed by the company president, and the other employer’s handbook merely said that no one in management had authority to make changes to the at-will policy. Specifically, the two at-will policies validated by the Division of Advice provided:
The relationship between you and Mimi’s Café is referred to as “employment at will.” This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment.
Statement of At-Will Employment Status
Employment with Rocha Transportation is employment at-will. Employment at-will may be terminated with or without cause and with or without notice at any time by the employee or the Company. Nothing in this Handbook or in any document or statement shall limit the right to terminate employment at-will. No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing.
The Rocha Transportation handbook also contained an "Acknowledgment of Receipt" that employees were required to sign, acknowledging that "nothing in the employee handbook creates or is intended to create a promise, contract, or representation of continued employment ...” The Division of Advice noted this was important in showing that the employer was trying to protect against contract claims, as opposed to trying to restrict employees’ rights under the Act.
The Division of Advice’s memoranda provide a welcome respite from an otherwise troubling (for employers) spate of Board decisions affecting both non-union and unionized employers on topics such as social media, off-duty access, and confidentiality policies. Although the Division of Advice’s memoranda are technically not binding, the Board’s Acting General Counsel has instructed all NLRB Regional Offices to consult with the Division of Advice before issuing any complaint challenging an employer’s at-will policy. And employers now have some helpful guidance from these memoranda concerning how to word at-will policies.
The National Labor Relations Board (“NLRB”) continues to closely scrutinize employers’ social media policies and practices. As employers struggle to craft policies that promote productivity while at the same time protect employees’ rights, both unionized and non-unionized employers need to be aware of recent NLRB decisions and their impact on employer policies:
Social-Media Based Termination Can Be Acceptable, But Rule Requiring “Courtesy” Is Not
On September 28, 2012, a three-member panel of the NLRB affirmed the termination of a car salesman who posted photographs on Facebook ridiculing his employer, but it rejected the employer’s rule requiring courteous behavior. (Karl Knauz Motors Inc., 358 N.L.R.B. No. 164, Sept. 28, 2012 [released Oct. 1, 2012]). Knauz marked the first time a panel of the NLRB decided a case involving social media; previously, all NLRB guidance in this area came from ALJ decisions or the Board’s General Counsel Memoranda. In Knauz, a sales employee had complained on his Facebook page about his employer, a BMW car dealership, posting photos and criticizing bad food the dealer offered at a sales event; he had also discussed those concerns with other coworkers. He also posted critical comments and photos about an accident during a test drive at the dealership. The employer terminated the employee for his Facebook postings and for violating the employer’s courtesy policy. That policy stated that “[e]veryone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees,” and that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.”
The NLRB ultimately declined to decide whether the employee’s complaints about the food were protected activity under the NLRA. The ALJ below had held the food complaints were protected because the employee and his coworkers conceivably were concerned that the low-quality food offered at the sales event would deter customers from coming, thus leading to lower sales commissions for the employees. Instead, the NLRB upheld the employee’s termination, agreeing with the ALJ that the employee’s Facebook postings relating to the on-site accident were not related to any employees’ terms or conditions of employment.
Most interestingly, the NLRB decided, in a 2-1 split decision, that the employer’s rule on courtesy violated the NLRA because it could reasonably be construed by employees as prohibiting protected concerted activities, “such as employees’ protected statements—whether to coworkers, supervisors, managers, or third parties who deal with the Respondent— that object to their working conditions and seek the support of others in improving them.”
Employer Cannot Prohibit Use of Social Media During “Company Time”
On September 20, 2012, an ALJ found that an employer’s policy prohibiting the use of social media on “Company time” violated the NLRA. (EchoStar Techs. LLC, NLRB ALJ, No. 27-CA-066726, Sept. 20, 2012). This decision is consistent with recent NLRB General Counsel Memoranda (here and here), which tend to distinguish between “company time” and “work time.” Indeed, the General Counsel has explicitly approved a social media policy that directs employees to “[r]efrain from using social media while on work time or on equipment we provide.” A restriction as broad as prohibiting social media use during “company time” would encompass nonworking time, such as paid breaks, which could interfere with employees’ ability to exercise their rights to concerted activity under the NLRA.
The employer argued that the social-media prohibition was a common-sense rule designed to prevent employees from engaging in personal activities on the job—a problem that has become pervasive in the workplace, substantially affecting productivity. The employer also argued that the “Company time” prohibition was reasonable in context because it was included in a policy restricting the use of company equipment, which the employer argued it could restrict whether during working time or nonworking time. Without significant discussion, the ALJ simply ruled that the prohibition was unlawful and must be removed from the employee handbook.
What to Take Away
The NLRB law on social media policies is continuing to evolve in favor of employees. It is a delicate line to balance between (1) appropriate limitations on the use of social media, and (2) protecting employees’ rights of concerted activity under the NLRA to confer for their mutual benefit regarding the terms and conditions of employment. It seems clear, however, that broad-based bans on the use of social media during work-time, and efforts to control the nature of employees’ communications on social media as they relate to working conditions, will not be viewed favorably by the NLRB.
In order to allow more time for legal challenges to its notice-posting rule to be resolved, the National Labor Relations Board has again postponed the rule's effective date, this time to April 30, 2012. Stay tuned.
For additional information regarding the NLRB's new rule and posting requirement, including links to the new rule and the poster employers must post, see our prior post on this topic by following this link.