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

By Nelson Cary and Ashley Manfull

Recognizing that the increased use of social media by employees commenting on work-related matters has led to many complex issues for employers, the Acting General Counsel (AGC) issued its first report in August 2011 summarizing cases involving social media issues. As the complexities of this issue are far from resolved, the AGC has now issued a second report summarizing 14 new social media cases that the AGC has considered.

The AGC’s second report (pdf), issued on January 24, 2012, focuses significant attention on (1) whether an employee’s use of social media to comment on various work-related issues constitutes concerted protected activity; and (2) whether employer policies seeking to impose limitations on an employee’s ability to comment on work-related issues are overly broad or could reasonably be interpreted to prohibit comment on Section 7 protected speech.

The 35-page report may be well worth the read for labor professionals struggling to understand the extent to which employee comments in a public forum can be regulated and/or subject to disciplinary action. For those with less time or interest, however, some of the more noteworthy highlights in the report are summarized below.

Of the 14 cases briefed in the AGC’s report, seven of them address whether employer policies limiting employee communications are overly broad. In five of the seven cases, the AGC determined that the following policy language was overly broad and thus unlawful: 

·         Employer rule prohibiting “making disparaging comments about the company through any media, including online blogs”;

·         Employer rule that employee discussion of terms and conditions must be in an “appropriate” manner, without defining “appropriate”;

·         Employer work rule prohibiting “insubordination or other disrespectful conduct” and “inappropriate conversation”; and

·         Employer policy prohibiting disclosure of confidential, sensitive or non-public information concerning the company without further definition. 

However, in two of the cases analyzed, employer social media policies withstood scrutiny where the employer’s rule specifically listed plainly egregious conduct that was prohibited (vulgar, obscene, threatening, intimidating, harassing, and/or unlawful discriminatory comments) and limited employee disclosure of confidential information to matters protected by federal law, like securities or health information laws.

Eleven of the 14 cases summarized by the AGC addressed whether an employee was properly terminated because of on-line forum posts. In five of the 11 cases, the AGC determined that the employee was discharged for engaging in protected concerted activity:

·         Employee initiated Facebook discussion because Employer transferred her to a less lucrative position, which included discussion of potential for class action lawsuit;

·         Employee posted comments on Facebook complaining about being reprimanded for her involvement in fellow employees' work-related problems;

·         Employee posted message on Facebook about the promotion of a coworker she believed to be unfair; post led to three responses from co-worker “friends” discussing the promotion and mismanagement concerns;

·         Employee engaged in Facebook conversation with other employees concerning negative attitude of Operations Manager and “drama” he caused at work; and

·         Employee made numerous on-line posts related to labor issues, unfair labor practice charges filed, and critical of employer’s management style, which elicited supportive responses from numerous employees.

On the other hand, in six of the 11 cases, the AGC found that the employee was not unlawfully terminated for engaging in the following types of conduct.  For example: 

·         Employee Facebook posts griping about her supervisor reprimanding her for failing to perform a task she was not instructed to perform;

·         Employee Facebook post complaining about her coworker’s job performance where it had a very limited connection to the terms and conditions of her employment;

·         Employee’s angry, profane comments on Facebook ranting against her coworkers that they blamed her for everything and she hated them.

·         Employee Facebook post that her coworker’s annoying habit was driving her nuts and she was “about to beat him with a ventilator.”

Labor relations professionals should continue to keep several points in mind when attempting to determine the landscape of social media cases in light of the AGC’s August 2011 and January 2012 reports: 

·         The AGC’s reports only summarize conduct that the AGC believes violates the law. Until the complaints make their way to the NLRB, it is unknown whether the NLRB will agree with the AGC’s conclusions;

·         Whether a violation of Section 7 exists is an extremely fact intensive question. Each employment action and policy must be examined on its own set of facts and circumstances; and

·         Employer policies regarding employee conduct and use of social media should be crafted from the perspective of what conduct a “reasonable” employee would understand as being limited. Policies restricting employee posts should avoid overly broad language, ambiguous words, and undefined terms.

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The NLRB published a final rule on the election process late last year.  In doing so, however, the final rule left out a number of changes to the election process that were originally proposed in June 2011.  For example, there were proposed changes to the requirements to provide lists of employee names and contact information after an election petition is filed, the timing of providing that list, and other issues.  As previously explained, the NLRB announced last month that it would keep these additional changes to the election rules under consideration for possible future action.

In an interview published by the Associated Press yesterday, NLRB Chairman Pearce (D) confirmed his intention to continue pushing forward with these additional regulatory proposals.  "We keep our eye on the prize," the AP quotes Chairman Pearce as saying. "Our goal is to create a set of rules that eliminate a lot of waste of time, energy and money for the taxpayers."  Chairman Pearce announced his hope that the NLRB will propose the rules "soon," according to the AP.

For the labor professional, this most recent development confirms that there is likely more rulemaking yet to come on the so-called "ambush election" or "quickie election" rule.  This announcement does not, however, alter the currently announced effective date for the final rule published last month on the election process.  It is still scheduled to become effective on April 30, 2012.

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By Nelson Cary and Ben Shepler

New year, same controversial NLRB. In a decision that seems destined for appeal, the NLRB recently ruled that employers may not utilize individual arbitration agreements that prevent employees from joining in employment-related class or collective actions. The NLRB’s decision is notable because, among other things, it arguably conflicts with both the Federal Arbitration Act (FAA) and with a recent pro-arbitration decision issued by the United States Supreme Court.

In D.R. Horton, Inc., 357 N.L.R.B. No. 184 (Jan. 3, 2012) (pdf), the NLRB held that homebuilder D.R. Horton committed an unfair labor practice by requiring employees to sign a mandatory arbitration agreement that (1) forced employees to submit employment-related disputes to binding arbitration and (2) prohibited the arbitrator from considering these disputes as part of a class or collective action. This prohibition came under fire in 2008, when a former D.R. Horton employee attempted to initiate a collective action arbitration alleging violations of the Fair Labor Standards Act. 

In a 2-0 decision, with Member Hayes (R) having recused himself, the NLRB held that participation in class or collective actions is protected concerted activity under the NLRA. Accordingly, the arbitration agreement violated the NLRA because it prohibited employees from participating in protected concerted activity. The NLRB further held that the arbitration agreement violated the NLRA because the agreement appeared to prohibit employees from filing unfair labor practice charges with the NLRB.  

As part of its decision, the NLRB also considered an important issue of first impression:  whether the prohibition on class/collective action waivers in arbitration agreements the NLRB found in the NLRA put the NLRA in conflict with the pro-arbitration FAA. The NLRB determined that no conflict existed, noting that the NLRA would also prohibit other contracts that barred employment class or collective actions, regardless of whether the contract involved arbitration. 

Finally, the NLRB addressed concerns that its decision conflicted with a recent pro-arbitration opinion from the United States Supreme Court. In AT&T Mobility v. Concepcion, 131 S. Ct. 1740, 1753 (2011) (pdf), the Supreme Court held that the FAA preempted a California law that prohibited class action waivers in consumer arbitration contracts. The NLRB attempted to distinguish AT&T Mobility by pointing out that the case involved a conflict between the FAA and state law, whereas the arbitration agreement at issue in D.R. Horton involved a potential conflict between two federal statutes, the FAA and the NLRA. 

The strength of the NLRB’s reasoning will almost certainly be tested on appeal. In the interim, labor professionals should review all individual, non-collectively bargained arbitration policies. In particular, labor professionals should consider:

• Allowing employees to participate in employment-related class or collective actions. According to the NLRB, an arbitration agreement can prohibit class or collective arbitration so long as employees were allowed to bring these claims in court. The NLRB chose not to address the opposite scenario:  whether an arbitration agreement could allow class or collective arbitration claims, but prohibit those claims in court. 

• Allowing employees to file unfair labor practice charges with the NLRB. Excluding such claims from the scope of an arbitration agreement improves the likelihood that the arbitration agreement will not run afoul of the NLRA. 

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By Nelson Cary and Micah Dawson

In College Football Bowl week terminology, some would say President Obama ran an “end-around” play on the Senate yesterday.  Using his recess appointment power, he filled the three vacancies on the National Labor Relations Board, despite the Senate's refusal to act on those appointments.  President Obama appointed his two most recent nominees, Deputy Labor Secretary Sharon Block (D) and union attorney Richard Griffin (D), to year long positions.  Obama also appointed Board counsel Terence Flynn (R), whose appointment had lingered for nearly a year, to fill the final vacancy on the five-member board, giving it a full contingent for the first time in a number of years.

The Chamber of Commerce, and Republicans, expressed immediate outrage and questioned whether the recess appointments were legal.  The argument against the appointments centers on the meaning of the recess appointment power contained in the U.S. Constitution.  Republicans point out there is not currently a “recess” as neither chamber has passed an adjournment resolution, and both chambers have been holding pro-forma sessions every three days. 

Whether the Chamber of Commerce or other business groups will file a lawsuit challenging the recess appointments is yet to be seen.  Labor professionals should monitor these developments as such a lawsuit would join a growing string of litigation involving the NLRB.

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Think that just because an employee has the title "supervisor" and is involved in the disciplinary process that the employee will necessarily be a supervisor under the NLRA?  Think again. 

In a recent decision, the NLRB examined the duties of an employee with the title "field supervisor."  This employee was the first level of leadership for hourly, non-supervisory employees.  The field supervisor monitored the productivity of those employees, examined their work, and inspected their vehicles.  The field supervisor could give verbal warnings to those employees for performance or attendance issues.  The field supervisor could also initiate what the employer called an "employee consultation form" (ECF), recommending to higher management that more significant disciplinary action be taken.  Following the referral of the ECF to higher management, multiple levels of management, along with a human resources manager, would review the ECF before accepting or rejecting it.  The employer established that higher management rarely rejected an ECF from a field supervisor.

In DirectTV, 357 N.L.R.B. No. 149 (Dec. 22, 2011) (pdf), the NLRB held in a 2-1 decision that the employer failed to prove that the field supervisor was a "supervisor" under the NLRA.  To be a supervisor under the NLRA, an employee must possess certain authority with respect to other employees.  One such authority is the power to discipline another employee, or to effectively recommend that disciplinary action be taken.

The NLRB noted that "effectively recommend" means that the recommended action is taken without an independent investigation by superiors, and not simply that the recommendation is ultimately followed.  The NLRB then found that the employer proved merely that management ultimately followed the recommendation.  According to the majority, the employer didn't prove what weight higher management attached to the field supervisor's recommendation.  It also found that the review by other levels of management constituted "independent investigation" by the superiors.  Finally, the majority found fault with the employer's proof because it didn't demonstrate what impact the ECFs had on an employee's job status, future tenure or discipline.

Member Hayes (R) dissented.  He found that the record clearly established that the field supervisor had the independent, discretionary authority to discipline other employees.  The subsequent review by higher levels of management was not unique and to be expected to "assure procedural compliance with myriad Federal and State employment law regulations."  He also noted that the record contained evidence that ECF's seeking discipline up to and including termination have been approved and implemented.  Accordingly, Member Hayes would have held that the field supervisors are supervisors under the NLRA.

For the labor professional, the NLRB's decision is an important reminder of four points:

• Titles don't matter; duties do.  Regardless of what title an employer bestows upon an employee, it is important to match the duties to that title.
• "Effectively recommend" is not easily proved.  The NLRB will clearly look closely at how the alleged supervisor interacts with other members of management and what authority the person actually exercises.
• The burden of proving supervisory status is on the party asserting it.  If an employer anticipates taking the position that an employee is a supervisor, then the employer should be prepared with documentary evidence to prove that the employee exercises the statutorily required authority.
• Knowing which employees are supervisors is critical.  In this case, the evidence suggested that the field supervisors were involved in prounion activity.  The union won the election by only a five vote margin.  Because the field supervisors were not "supervisors" under the NLRA, their prounion activities didn't require a second election.

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