Vorys on Labor : Labor Relations Lawyer & Attorney: Vorys, Sater, Seymour and Pease Law Firm: National Labor Relations

In all of the talk about the mid-term elections on November 2, it would be easy to overlook issues that might be more important to the labor professional.  Thus, this short list of what to watch for in the elections this week.  

• State efforts to limit EFCA. Voters in four states -- South Dakota, South Carolina, Arizona, and Utah -- will decide on proposed amendments to their state constitutions that would require a secret ballot vote in union elections.  These laws are, of course, directed at undermining EFCA, if it were to ever pass.  While the legal effect of these laws is questionable -- the NLRA usually preempts state law on the same subject -- the political effect could be significant.  The vote results will be an interesting gauge of popular sentiment about one of the core elements of EFCA:  card check.
• Key Senate races.  Two in particular stand out:  Colorado and West Virginia.  In both races, the Democratic candidate has opposed organized labor on EFCA.  Michael Bennet in Colorado has said he is opposed to EFCA in its current form.  Joe Manchin in West Virginia, who has earned the endorsement of the Chamber of Commerce, has also indicated opposition.  However, in both races, unions are spending significant sums to support the Democratic candidate.  If they win, EFCA's proponents could well push for a compromise version of the legislation.
• Union voter turnout.  Unions have spent a lot of money in this election cycle.  Among other things, that money has gone towards get out the vote efforts in key states and political races.  Voter turnout among union households, and the way in which those households vote, will be interesting to watch to determine the effectiveness of this spending.

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A traditional remedy the NLRB has always ordered when it finds that an employer or a union violated the NLRA is the posting of a written notice.  Usually, the remedial notice contains a brief recitation of employee rights under the law, a listing of the violations the NLRB found, an  undertaking to cease and desist from that conduct, and a description of affirmative action to be taken to resolve the violations.  The notice must be signed by a responsible official of the party found in violation of the law.

In the past, the NLRB ordered the remedial notice to be posted in all places where notices were customarily posted.  In the case of an employer, this usually meant bulletin boards controlled by the employer, near time clocks, and similar locations.  It was typically an extraordinary remedy for the notice to be disseminated any more broadly than this paper posting.

In J&R Flooring, Inc., 356 N.L.R.B. No. 9 (2010) (3-1), the NLRB recently altered this traditional approach.  In a case involving violations of the NLRA by an employer, the NLRB ordered that the employer distribute the remedial notice electronically when that is the customary means of communicating with employees.  (The same rule applies in the case of unions found to have violated the NLRA.)  Member Hayes disagreed, and would have limited the posting to the traditional remedy.

The NLRB reasoned that employers are increasingly communicating with employees through electronic media.  The NLRB also pointed to the growth in telecommuting and decentralization of workspaces that could cause an employee to never see a notice that is posted on a bulletin board.  Finally, the NLRB reasoned that if an employer customarily uses its electronic systems to communicate with employees, then use of the same means to distribute a remedial notice would not impose an undue burden on employers.

For the labor relations professional, the J&R Flooring decision is significant for four reasons:

1. Electronic "posting" means easy access.  With remedial notices available electronically will come a greater ability to distribute them to key customers, vendors, or other employee groups not impacted by the unlawful conduct.  Member Hayes noted the employer's loss of control over the remedial notice document as one of the reasons he believed electronic distribution should remain an extraordinary remedy.
2. The contours of the obligation are uncertain.  The NLRB doesn't define in the decision the circumstances under which any particular set of circumstances will warrant the conclusion that the employer's use of electronic media is sufficiently customary.
3. The decision potentially foreshadows reversal of a key 2007 decision.  In 2007, the NLRB held that an employer could restrict, on a non-discriminatory basis, non-business use of its e-mail systems (e.g., for union-related solicitation or distribution).  Then-Member Liebman dissented strongly from this decision.  The primary basis for her dissent was that e-mail had become a prevalent way for employees to communicate with one another.  The NLRB's statements about technology in the workplace in J&R Flooring are consistent with her dissent.
4. Social media may be next.  As Member Hayes pointed out in his dissent, the decision is unclear whether posting of the remedial notice on social networking sites would be required.  If an employer communicated with employees through "tweats" on Twitter, for example, the decision might require the employer to "tweat" about the notice posting.

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During union organizing campaigns, employers are often confronted with complaints from employees that employee organizers are "harassing" them about signing union authorization cards.  Sensitized through years of training on laws prohibiting discrimination and harassment, an employer's first instinct is often to view such complaints under its harassment policy.  Employers sometimes also encourage employees to report "harassment" so that appropriate remedial action can be taken.

These instincts can lead to legal trouble for an employer during a union organizing attempt.  For example, in late 2008, the Boulder City Hospital found itself in a similar situation.  Two or more employees complained to their supervisor about "harassment" by other employees.  Specifically, the employees asserted that pro-union employees were soliciting them repeatedly to sign union cards.  The employer conducted no additional investigation after receiving these complaints.

In response to the complaints about harassment, the employer's CEO and Human Resources Director decided it would be a "good idea" to remind employees of the harassment policy the employer adopted well before any union organizing activity began.  This policy prohibited harassment and discrimination on the basis race, sex, religion, and other forms of illegal discrimination.  It didn't mention union activity.

The memorandum the employer posted said:  "Please be reminded that harassment or threatening behavior in any degree by or between employees will not be tolderated at Boulder City Hospital."  The memorandum then referenced the existing policies by name and number.  The memorandum concluded by saying:  "If you feel that you are being harassed or threatened in any way, you have the right to talk with Human Resources regarding your treatment."

The NLRB, in a 2-1 decision, ruled that the employer's memorandum was unlawful.  See Boulder City Hosp., Inc., 355 N.L.R.B. No. 203 (2010).  The majority reasoned that the posting, coming in the midst of union organizing activity and in the context of employee complaints about "harassment," violated employee rights under the NLRA.  Persistent union solicitation is protected even if it is annoying or disturbing to the employee being solicited.  According to the majority, a reasonable employee could interpret the memorandum as equating such protected solicitation with unprotected harassment, and inviting complaints to management about that conduct.

In his dissent, Member Hayes emphasized that (1) the memorandum was merely a reminder of the harrassment policy, and expressly referenced that policy; (2) the memorandum didn't reference union card solicitation or union activity at all; and (3) there was no evidence that the harassment policy was inconsistently enforced.  Member Hayes urged his fellow members to be "cognizant of employers' substantial and legitimate interest in maintaining and communicating a valid anti-harassment policy."

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NLRB Acting General Counsel Lafe Solomon announced yesterday that the Office of the General Counsel (which acts as the "prosecutor" in unfair labor practice cases) is implementing a program to streamline the handling of Section 10(j) cases that involve employee discharges during union organizing campaigns. Section 10(j) authorizes the NLRB to seek an injunction from a federal court in certain situations. In a discharge case, the injunction orders the employer to reinstate the employee pending the outcome of the NLRB’s administrative process.

The program's goal, Mr. Solomon said, is “to give all unlawful discharges in organizing cases priority action and a speedy remedy” so that employees may resume union organizing. Under the new initiative, potential 10(j) organizing campaign discharge cases are identified as quickly as possible at the regional level. Once identified, detailed procedures are outlined (pdf) by Mr. Solomon for regional offices to investigate and prioritize resources towards an organizing campaign discharge case. Board Chairman Wilma Liebman said  (pdf) that the Board has also revisited its procedures for 10(j) cases in order to expedite the litigation process.

The Acting General Counsel’s new guidelines are an interesting development for labor professionals for a number of reasons:

• First, the similarity to provisions of EFCA is unmistakable. EFCA would add language to the NLRB requiring the prioritization of unfair labor practice charges occurring during an organizing campaign, which would include unlawful discharges. As readers of this blog know, President Obama has commented directly on administrative efforts to make union organizing easier.
• Second, employment decisions during organizing campaigns are always fraught with substantial risks.  Disciplinary actions like terminations will be even more difficult now.  Indeed, during much of the 2000s, around 20 or fewer 10(j) cases were filed.  Employers should expect those numbers to increase.
• Finally, the sweep of these rules is substantial. What if the union abandoned its organizing drive? What if the employee doesn’t want reinstatement? Neither of these things, "in themselves," matters according to the Acting General Counsel’s memorandum.

The Acting General Counsel’s action underscores the importance of seeking out labor counsel during a union organizing campaign to assist in navigating potentially turbulent waters.

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