Vorys on Labor

Vorys on Labor

Insights for the Labor Relations Professional

Remedies for Unfair Labor Practices: The NLRB’s Equivalent of a “Red Card”

Posted in NLRB

In soccer, as you MLS and Premier League fans know, a red card is issued for particularly egregious fouls.  If you have ever wondered how the NLRB responds to egregious instances of employer misconduct, wonder no longer.  In a recent case, the NLRB issued an equivalent of a “red card” to an employer who, according to the NLRB, engaged in a “10 year history of [NLRA] violations” before both the NLRB and federal courts.

The violations involved refusals to bargain, unilateral changes in working conditions, and disciplinary actions (including terminations) because of union activities.  I decided not to catalogue the violations the NLRB found here, as it would unduly lengthen this post.  A link to the case is here (pdf), and the curious reader can peruse the case at their leisure.

The interesting part of the case is the nature of the remedies that the NLRB ordered or considered.  A laundry list of them follows, along with references to the page number in the case where they are discussed for those interested in reading more:

  • Reimbursing the union and the government for the costs of litigating the unfair labor practice case, including the initial investigation of it all the way through the litigation before the NLRB (p. 3); Continue Reading

President Obama Withdraws Nomination of Sharon Block

Posted in NLRB

In an interesting move Wednesday, President Obama notified the U.S. Senate that he was withdrawing the nomination of Sharon Block to the NLRB.  In her place, the President nominated Lauren McGarity McFerran.

Ms. Block’s nomination cleared the Senate’s Health, Education, Labor and Pensions (HELP) Committee on an essentially party-line vote earlier this year.  The nomination of Ms. Block generated controversy as she was one of the individuals whose nomination the U.S. Supreme Court ruled unconstitutional in the Noel Canning case.

Ms. McFerran’s current post is as Deputy Staff Director to the HELP Committee.  Prior to that, Ms. McFerran held a different staff position with the HELP Committee.  She also practiced law for about three years at a Washington, D.C. firm known for its representation of unions and employees.

Unless the Senate acts quickly on the nomination, the President’s action means that the new Senate could take up the nomination.  If so, the hearings that will be conducted by the incoming Republican majority may provide an opportunity to raise concerns the employer community has about NLRB decisions over the last few years.  Even if she is not quickly confirmed, however, no “shutdown” of the NLRB is imminent.  Four other members, confirmed by the Senate, continue to serve their terms on the NLRB.

Not Every Facebook Exchange is Protected: NLRB Rules for Employer

Posted in NLRB

When employees take to Facebook with profanity-laced exchanges about their employer and job duties, odds are they will get fired.  When the same employees go to the NLRB for protection under the NLRA, they cannot count on a receptive audience all the time.  This much is demonstrated in an NLRB decision released last week.

In Richmond District Neighborhood Center, 361 N.L.R.B. No. 74 (Oct. 28, 2014), two activity leaders working at the Beacon Teen Center, an after-school program at a San Francisco High School, engaged in a profanity-laced Facebook exchange about work, detailing their intentions to refuse to obtain permission before organizing youth activities, disregard specific school-district rules, undermine leadership, and neglect their job duties.  The employees made numerous comments that they would organize “field trips all the time to wherever the fuck we want,” “teach the kids how to graffiti up the walls,” “take advantage” of their new supervisor, and “fuck it up,” referring to the Teen Center. 

After another employee sent screenshots of the conversation to management, the Center rescinded the employee’s rehire offers, explaining that the posted comments gave the Center great concern about the employees’ apparent intentions to disobey management directives and refuse to work with management, potentially endangering the Center’s youth participants.  The employees filed a charge alleging their statements on Facebook were protected under the NLRA.

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NLRB Will Not Take “No” For An Answer on Class and Collective Action Waivers

Posted in NLRB

A fine line exists between persistence and stubbornness.  Only time (and the United States Supreme Court) will tell how the NLRB’s latest controversial decision will be categorized.  In a 3-2 ruling, the Board in Murphy Oil USA, Inc., 361 N.L.R.B. No. 72 (Oct. 28, 2014) (pdf) strongly reaffirmed its position that employers may not utilize individual arbitration agreements that prevent employees from joining employment-related class or collective actions.

The NLRB first articulated this position in its D.R. Horton decision in January 2012.  Specifically, the Board held that participation in class or collective actions is protected concerted activity under the NLRA, and that D.R. Horton’s arbitration agreement impermissibly prohibited employees from engaging in this form of concerted activity.  The NLRB further argued that the right to participate in class or collective actions did not conflict with the pro-arbitration Federal Arbitration Act, which requires that arbitration agreements be enforced according to their terms. 

The Fifth Circuit Court of Appeals subsequently rejected the NLRB’s reasoning on multiple occasions and refused to enforce the D.R. Horton decision.  Numerous other courts, including the Second and Eighth Circuits, and the California Supreme Court, have also rejected the NLRB’s position.   

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Employers May Feel Blue About NLRB’s Purple Communications Decision

Posted in NLRB, Union Organizing

A recent decision from the NLRB is a good reminder that employer statements during union organizing activity have potentially wide-ranging effects.  This latest case involves Purple Communications, a provider of sign language interpreters who facilitate real-time, two-way phone communication between hearing-impaired and hearing individuals. 

The union filed objections after suffering narrow election defeats at two of Purple’s sixteen sites.  The NLRB ruled that Purple had engaged in objectionable conduct and set aside both elections.  As a result, the union got a second chance to convince employees to vote in favor of union representation.

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NLRB Revisits Independent Contractor Definition

Posted in NLRB, Union Organizing

Employees are permitted to join unions.  Independent contractors are not.  Thus, whether a particular working relationship involves an “employee” or an “independent contractor” is extremely important.  Recently, the NLRB has made it easier to establish employee status and correspondingly more difficult to establish independent contractor status.

Delivery DriverThe case involved delivery drivers for Federal Express Home Delivery.  The facts of the case are quite lengthy.  Thus, I will include only a highly condensed summary of them in this post. 

Each of the drivers sign an operating agreement with the company that describes the driver as an independent contractor.  The drivers can negotiate over the particular route assigned to them and over one aspect of their compensation.  Otherwise, the drivers cannot negotiate over the agreement and the company is able to make unilateral changes to it once a year upon 30 days notice.

The drivers own their own vehicles and can determine the make and size of vehicle, but the company can decide whether the vehicle is suitable.  The company requires the vehicles to display FedEx logos and drivers are required to submit daily logs and other reports pursuant to U.S. Department of Transportation regulations.

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Confessions of a Union Supporter

Posted in Union Organizing, Unions

In my labor law practice, I’m often asked:  “Why do employees support unions?”  My answer to this question usually comes from what I have gleaned from my years of experience providing legal advice to management during union organizing campaigns.  It isn’t often that you have the opportunity to hear directly and in detail about the reasons an employee would be interested in joining a union.  Management cannot, of course, ask that question of its employees. 

It is thus with significant interest that I noted an interview on The Washington Post’s website by Lydia DePillis (it may be necessary to scroll down after clicking the link).  The article contains a “slightly condensed” interview of an employee of American Airlines who recently voted in a union election.  That election resulted in a victory for the Teamsters and the Communication Workers of America in connection with representation of over 14,000 customer service representatives for US Airways and American Airlines.

The article generally discusses the employee’s experience during a reported 19-year-long effort to organize this group of workers.  When I read the article, however, four different passages appeared to describe reasons for the employee’s support of the organizing effort.  I have highlighted those passages in the quotes below, preceded by the reason to support the union that I thought the passage articulated. 

  • Job security.

We have life insurance, we have car insurance, and now we have some job insurance with representation with the union.”

And, a little later in the interview, “American [Airlines] hasn’t really outsourced overseas, we just didn’t want that in the future.”

  • Fairness/Subjectivity.

Naturally in a company, you have office politics, and sometimes you have office favorites, and all I can say is there are those that didn’t want that policy to change.  But, it’s going to be a little bit less subjective, and a little bit more in writing in the contract, less local policy and more across the board.  People will not think ‘if only I was treated a little more fairly, like x, y and z.’  There’s not going to be that envy of how another person was treated in a similar situation.”

  • More money.

I have general expectations that we’ll have a benefits increase, we’ll have a wages increase.  I’m just looking at the US Airways contract – even their health insurance is better than American Airlines for people who take reservations.”

  • Different working conditions between different groups of employees doing substantially similar work.

More than 50 percent of the people in reservations now are home-based and make a lower salary, have dramatically less benefits than office-based workers.  So they were a great help, because obviously they had a little more incentive than the office-based workers to organize amongst themselves.”

Of course, the views of one do not necessarily represent the views of many.  Moreover, a single interview does not make for a comprehensive list.  Nonetheless, the article helps shed light on an important question for labor professionals to consider, and one that I get asked with some frequency.

Protecting the Employer’s Brand During a Labor Dispute

Posted in Union Organizing

The NLRB makes it hard to protect a company’s investment, which can be substantial, in its brand. A recent decision demonstrates the perils that employers can encounter for their brand during a labor dispute. The case involved the national sandwich franchise, Jimmy John’s, and one of its franchisees in the Minneapolis-St. Paul area.

The franchisee’s workers began a union organizing effort. One of the issues that employees wanted to address was a right to have paid sick days. The franchisee’s policy provided that employees could not “simply” call in sick, but instead had to arrange for someone to take their place. Employees did not receive paid sick days. Employees believed the policy encouraged employees to work while sick, which in turn posed health risks to consumers of the sandwiches the sick employees prepared.

To address this concern, employees prepared a poster (pdf) and a letter to the franchisee’s owner. The employees demanded a meeting to discuss the sick leave policy. Failure to have a meeting, the letter advised, would result in the employees putting up the posters in public areas near the franchisee’s stores. The union attempting to organize the employees also put out a press release, attaching a copy of the poster.


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Employers Won’t “Like” This One: NLRB Holds Facebook “Thumbs Up” Is Protected Concerted Activity

Posted in NLRB

By Ashley Manfull

Numerous actions by the NLRB’s General Counsel and administrative law judges (highlighted in prior posts on this blog) have caused great concern for labor professionals grappling with the inappropriate comments of employees posted on social media. While these actions have made it difficult enough to determine whether employees’ online comments sufficiently cross the line to take lawful disciplinary action, the NLRB now adds to the confusion, finding employees who simply click “Like” in response to a Facebook post may be engaging in protected, concerted activity.

social mediaOn August 22, 2014, the three member NLRB panel issued a unanimous decision in Triple Play Sports Bar and Grille, 361 N.L.R.B. No. 31, finding an employer unlawfully discharged two employees for their participation in a Facebook discussion involving claims that the bar made withholding mistakes which caused the employees to owe additional state income taxes. The conversation started when a former employee posted a “status update” complaining that she owed money because the bar did not do her tax paperwork correctly. The former employee stated:  “Maybe someone should do the owners of Triple Play a favor and buy it from them.” Other employees commented on the former employee’s status, echoing their dissatisfaction in various profanity-laced statements. The former employee who posted the initial status later added a comment accusing the owner of pocketing money from their paychecks. 

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Cry “Solidarity” and Let Loose the NLRB: A Significant Expansion of the NLRA’s Protections

Posted in NLRB

A recent NLRB decision will likely result in a significant expansion of the activity the NLRA protects. The case, Fresh & Easy Neighborhood Market, Inc., 361 N.L.R.B. No. 12 (2014) (pdf), arose from a complaint about sexual harassment. A female employee – Elias – placed a message on a whiteboard at the request of her supervisor. A word in that message was subsequently changed to an inappropriate term for the workplace, and a drawing of a peanut or worm urinating on the employee’s name was added. 

Upon seeing her changed message, Elias told her supervisor that she wanted to file a sexual harassment complaint. She also wrote out the message on a piece of paper and asked, albeit apparently not in a very polite or subtle fashion, a supervisor and two other co-workers to sign that piece of a paper as “witnesses” that she had copied down the words and drawing correctly. While the other employees did so, one later complained to the employer that she was “bullied” into signing the paper by Elias. Another employee later testified that she signed only because Elias was making a scene in front of customers. No one signed the paper intending to take group action.

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