Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Requesting Police Enforcement of Trespass Law is a “Petition” to the Government

Posted in Courts, Unions

The First Amendment to the United States Constitution protects the right of the people “to petition the Government for a redress of grievances.”  Courts have concluded that when a person petitions the Government in good faith, the First Amendment prohibits any sanction for that conduct.  Applied in the labor law context, therefore, employer conduct that would other­wise be illegal may be protected by the First Amendment, and thus legal, when it is part of a direct petition to the Government.

In a case involving a Las Vegas hotel, a federal court of appeals recently applied these concepts.  As a result of what was then an ongoing battle between the hotel and two different labor unions, the labor unions decided to hold a large demonstration on one lane of the road in front of the hotel, and on a temporary walkway adjacent to the road.  As over a thousand demonstrators marched on the walkway, the hotel asked police officers to issue criminal citations to the demonstrators and to block them from the walkway.  The hotel maintained, based upon a property quirk arising from the construction of the hotel, that the walkway on which the demonstrators were marching was private property.

Examining the constitutional question of whether the request to police officers present on the scene was a “petition” to the Government, the Court held that it was.  “Requesting police enforcement of state trespass law is an attempt to persuade the local government to take particular action with respect to a law.”  Accordingly, even if the request to the police officers was illegal under the NLRA, it would be protected by the First Amendment. Continue Reading

Court Disagrees with NLRB Ruling on Dress of Customer-Facing Employees

Posted in Employee Discipline, NLRB, Union Insignia

More than four years ago, the NLRB gave priority to an employee’s right to wear clothing with messages critical of their employer over an employer’s interest in its reputation with T-Shirtcustomers.  In a case involving AT&T employees, the NLRB ruled that an employer violated the law when it prevented its service technicians, when visiting customer homes, from wearing a t-shirt critical of the company.  My blog post on the original decision describes the t-shirt.

On Friday last week, the federal court of appeals in Washington, D.C. overruled the NLRB’s decision.  Noting that “[c]ommon sense sometimes matters in resolving legal disputes,” the Court found that the prohibition on wearing the t-shirt was lawful.  Accordingly, the employer was within its rights to suspend 183 employees for one day when they failed to comply with the employer’s instruction to remove the t-shirt. Continue Reading

Surely a Tugboat Captain is a Supervisor Under the NLRA, Right? Not Necessarily!

Posted in NLRB, Supervisors, Union Organizing

A tugboat captain is responsible for the safe operation of the vessel, its crew, and its cargo.  The captain has deckhands available to help with that operation, and can tell those Tugboatemployees what to do and when to do it.  Surely, therefore, it would seem that a captain should stand a pretty good chance of qualifying as a “supervisor” under the NLRA.

A recent NLRB decision, however, is a reminder that supervisory status can’t simply be assumed.  It must be proven.  And that can be difficult.

In the context of a union election petition, the NLRB needed to decide whether tugboat captains were “supervisors” under the NLRA.  If so, then the captains could be excluded from the bargaining unit.  To be a supervisor, however, the employee must exercise, or effectively recommend the exercise of, at least one of 12 different powers, and do so using “independent judgment” in the “interest of the employer.”

The recent case involved the authority to “assign” work and “responsibly to direct” other employees in the performance of work.  The NLRB majority held that the employer failed to prove that their tugboat captains had these powers.  As in all cases involving supervisory status, there is a substantial amount of detail.  Those interested in the detail can read the full decision (pdf). Continue Reading

Termination for Dishonesty During Internal Investigation Lawful, Says NLRB

Posted in Employee Discipline, NLRB

In a positive development for employers, the NLRB held last week that the termination of an employee for lying during an internal investigation into complaints of harassing/discriminatory conduct was lawful.  Significantly, the decision occurred in a case that had been vacated as a result of Noel Canning.

First, a quick review of the facts.  The employee at issue was a union supporter.  During the campaign, the employee scribbled messages on union literature that were “vulgar, insensitive, and, in isolation, arguably threatening….”  The employer, in a “good faith response” to a complaint from several female employees, conducted an investigation to determine whether the employee violated its sexual harassment policy.  During the ensuing investigation, the employee lied twice.  More details, including what the employee wrote, can be found in our post on the earlier decision.

The NLRB previously held that the termination was unlawful.  That decision was subsequently among the hundreds that were vacated as a result of Noel Canning.  While the vast majority of these cases ended up coming out exactly the same way, the NLRB actually (and thankfully, for employers) reversed course in this case.

The NLRB side-stepped the question of whether the employee’s vulgar scribbling constituted protected conduct, assuming for the sake of argument that it was protected.  Instead, the NLRB focused only the termination.  It concluded that the termination was lawful because:

  • the employer had a legitimate business interest in investigating the conduct, namely the enforcement of its anti-harassment policy and compliance with anti-discrimination laws;
  • the employer conducted its investigation in a manner that was consistent with its purpose, truthfully explaining the purpose of the interview and tailoring its questions to avoid inquiry into protected conduct;
  • there was no credible evidence that the investigation took place in the context of hostility towards union activity; and
  • the employee had no reasonable basis on which to believe that the employer was trying to pry into his union activity, and thus he was not privileged to lie (as the NLRB had previously held).

The NLRB also examined the employer’s reason for termination.  The employer admitted that one reason for the termination was what the employee wrote.  Thus, the NLRB analyzed whether the employer would have fired the employee solely for the dishonesty.  The NLRB concluded that the employer would have done so as the employer was able to present evidence that it did so in a prior situation that did not involve union organizing.

The NLRB’s change of course is certainly welcome news for employers.  Given the NLRB’s reasoning, however, a two key points bear mention:

  • Discipline consistently.  The employer won because it could demonstrate that other employees were fired for dishonesty alone.  If the employer had not been consistent on this issue, it could have undermined its position in the case.
  • Investigate carefully.  A crucial fact in this case was the complaints from other employees about the scribbling, and the employer’s ensuing investigation, which itself was carefully crafted to focus only on the complained of conduct.  Had the employer overreacted to the complaints, for example, by launching a “dragnet” style investigation, the outcome would likely have been different.

UPDATE: Business Groups Appeal Loss on Election Rule

Posted in Courts, Elections, Union Organizing

Updating our post from yesterday, the Texas business groups who lost their challenge to the NLRB’s “ambush” election rule wasted no time filing a Notice of Appeal (pdf) of that decision to the U.S. Court of Appeals for the Fifth Circuit.  While it is certainly possible that the appeals court could reverse the decision, any such decision will travel a long, hard road.  In the meantime, the election rule remains in effect.  Stay tuned to this blog for further updates on this appeal, the pending D.C. case, and other updated coverage as the legal battles over this rule continue.

More Election Petitions, Quicker Votes: Data About the Early Impact of the NLRB’s New Election Rule

Posted in Elections, NLRB, Union Organizing

On the heels of the Texas court’s ruling earlier this week, and with more than a month of experience with the NLRB’s new election rule behind us, I thought it would be interesting to find out what the data actually shows is happening under the new rule.  So, yesterday I turned to Susan Connelly of PTI Labor Research (PTI) to get her insights on that question.  Susan, as the Executive Director of PTI, collects and analyzes petition and election data from the NLRB on a daily basis.  Susan told me that PTI’s databases contain 25 years of NLRB case filings.  Thus, the data is a helpful source to identify trends.  Here is what Susan had to say:

Nelson: We realize there isn’t a lot of data yet, but we have been living with the new rule for a month now.  One of our predictions—and a prediction of many other labor law practitioners —was that the rule would shorten the average time between petition and election.  What does the data say about that?
Susan: Prior to the new rules going into effect, the median number of days from petition to election was 38 calendar days.  Law360 reported that the median number of days for the first month under the new rules was 23 days.  More alarming than this though, in one of the cases we were following, the company representatives were not informed of the exact election arrangements until the week prior to the vote.  Statistics have shown us that the higher the percentage of those who are eligible to vote participate in voting, the less likely it is that the union prevails in the election.  Having such a short time to ensure voters are fully aware of the voting arrangements, especially for large bargaining units, puts even more of a burden on management to try to encourage the highest voter turnout possible.
N: Have you seen any data to suggest that unions are becoming more active in filing more representation petitions, thus taking advantage of the new rule to try to organize new groups of employees?
S: Absolutely.  The first month under the new rules (April 14 to May 14, 2015) saw a whopping 266 union certification petitions filed with the NLRB (“RC” petitions).  This was up 24% from the previous five years’ average for the same time period.  We have seen various reports of the numbers of petitions filed in recent weeks and the numbers seem to be slightly different from one source to the next, though all show an increase in activity.  We were able to verify our numbers with the NLRB’s website (www.nlrb.gov).  If your readers have not viewed this website recently, I would recommend that they take a look at the cases filed to see the most active industries, areas and unions.
N: One of the other worries about this rule was that the shorter time period might actually cause more disputes and result in fewer stipulated elections.  Is there any data to suggest that we should still be concerned about this?
S: Early data is showing us that the stipulated election rate is actually increasing as opposed to decreasing.  In two of the cases we were following, the company representatives feared that going to the hearing could result in an even shorter time frame, or the same time frame but the company not knowing the particulars of the voting arrangements until late in the process.  It will be interesting to see how the new rules affect certification rates after the vote, but that will not be known for some time.
N: Finally, with the decision from the Texas federal court earlier this week, chances of an early knock out of the new election rule seem increasingly slim.  Thus, I think our readers would be very interested in what if anything you can tell us about your predictions for how this rule will impact the election process?
S: We predict that as time goes under the new election rules that the Board will reduce the average time from a petition to election even further from what we have seen in the first month.  Our historical research has shown us that the shorter the time from the petition to the election, the more likely it is that the union prevails in the election.  Being prepared ahead of time for a possible organizing attempt is imperative – now more than ever.  Companies should be examining their vulnerability, wages and benefits in comparison to the market, policies, and potential bargaining units.  The most important aspect of preparedness is to train supervisors and managers ahead of time regarding recognizing and responding to organizing activity.

NLRB’s Election Rule Wins in Court

Posted in Elections, NLRB, Union Organizing

A federal judge in Texas dealt a serious blow to opponents of the NLRB’s new “ambush” election rule yesterday afternoon, tossing out a lawsuit from business groups challenging the rule.  Opponents of the rule have now lost in both court and in Congress.  There is only one remaining court case challenging the rule in the District of Columbia, but if this ruling from Texas is any indication, employers should not hold their breath for a reprieve from the rule.

The business groups suing in Texas made familiar arguments against the rule, which took effect April 14.  For example, the business groups argued that the requirement that an employer give the union a list of potential bargaining unit employees, complete with names, home addresses, home and cell phone numbers, and email addresses, violated employees’ right to privacy.  The business groups also argued that the rule drastically shortens the amount of time between petition and election, and in doing so, violates the right to free speech by preventing an employer from campaigning against unionization to its employees. Continue Reading

General Counsel Responds to Labor Practitioners’ Questions

Posted in Elections, NLRB, Union Negotiations

Earlier this year, the NLRB’s GC, who is responsible for enforcing the NLRA, continued his annual practice of attending the Mid-Winter Meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section.  The GC answered questions the committee had collected from labor law practitioners around the country.

A few weeks ago, as has become the practice, the GC published a memorandum (pdf) summarizing the questions that were posed to him and the answers he provided.  As in years past, the memorandum covers a wide range of topics that are too broad to cover effectively in this post.

Nonetheless, as I have done in prior years, I have listed some of the more noteworthy topics the memorandum covers below.  The parenthetical references are to the page(s) in the memorandum on which the summarized discussion appears:

  • 35.2% of all unfair labor practice charges with the regional offices of the NLRB are found meritorious. An overwhelming majority of those are then settled. Of those that are fully litigated, the NLRB wins in approximately 85% of the cases (2);
  • The NLRB regularly includes in its settlement agreements language that produces adverse consequences for employers in the event of a default. The GC indicated that regional offices have discretion to limit that language in certain circumstances to the location where the violation occurred and to limit the duration of the language to a six-month period (6);
  • The GC discusses in detail the new standards the NLRB has adopted for both pre-arbitration and post-arbitration deferral (8-10);
  • GC provides an interesting update on Noel Canning. Of the hundreds of cases invalidated by the Supreme Court’s decision, only 30 have not been revisited by the NLRB and in all the cases that have been decided, the result only changed in one of them (14);
  • In representation cases, the union’s win rate for elections held in fiscal year 2014 was 68% in union election cases and 33% in union decertification cases (26);
  • Of particular significance given the recently effective quickie or “ambush” election rules, the GC reported that the medium number of days from filing a petition to having an election was 38 and that 95.7% of all elections were conducted within 56 days of the petition filing (26);
  • The GC also provided some Q&A on the new election rules, covering a number of different issues (28).

Labor professionals with a particular interest in the foregoing and similar issues should review the GC’s memorandum in detail.

Policies on Employee Appearance and Social Media Use Declared Unlawful

Posted in Employee Discipline, NLRB

Recently, the NLRB, in a three-member panel of Chairman Pearce (D) and Members Hirozawa (D) and Johnson (R), ruled on more employee handbook provisions covering an expanse of topics including social media, employee conduct, and dress and grooming.

In Boch Imports, Inc., the NLRB determined that the employer, a car dealer, violated the NLRA by maintaining a social media policy that (1) required employees to identify themselves when posting on-line comments about the employer, its business, or any policy issue; and (2) prohibited employee use of the employer’s logos in any manner.  A dress code/personal hygiene policy that prohibited employees who have contact with the public from wearing pins, insignias, and other message-bearing clothing was also deemed unlawful. Continue Reading

The More the Merrier? A New Lawsuit Against the NLRB’s Election Rule Encounters an Early Setback

Posted in Courts, NLRB, Rulemaking

On Thursday, the NLRB won its first courtroom victory in connection with its “ambush” or “quickie” election rule, which went into effect earlier this month.  It was not, however, in one of the two cases that have been pending for some time, and that we have previously discussed on this blog.

Instead, the NLRB’s victory came in a new lawsuit filed in federal court in Washington, D.C.  In this new case, the employer and three of its employees sought a temporary restraining order (TRO) to prevent the NLRB from applying the provisions of the new rule to an election petition filed by the United Construction Workers Union the same day that the new rule took effect.

The employer – like the trade associations that have brought the other two lawsuits – argued that the rule’s requirement that an employer post a notice of election two days after receipt of the Union’s petition from the NLRB violated its free speech and due process rights.  The employer also argued that the compelled disclosure of employee names and personal information violated the employees’ right to privacy.

Continue Reading