Vorys on Labor

NLRB's Acting General Counsel Issues Second Report on Social Media Cases

Nelson Cary — Sun, 29 Jan 2012 17:24:46 -0500

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.

NLRB Election Process Rulemaking: It's Not Over Until It's Over

Nelson Cary — Fri, 27 Jan 2012 13:35:10 -0500

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.

NLRB Invalidates Arbitration Agreement Prohibiting Class/Collective Actions

Nelson Cary — Mon, 23 Jan 2012 04:00:00 -0500

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.

President Obama Uses Recess Appointments to Fill NLRB Vacancies

Nelson Cary — Thu, 05 Jan 2012 07:43:05 -0500

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.

When is a Supervisor Not a Supervisor? The NLRB Finds No Proof of Supervisory Authority

Nelson Cary — Tue, 03 Jan 2012 04:00:00 -0500

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.

Notice Posting Rule Delayed Again

Nelson Cary — Fri, 23 Dec 2011 15:17:50 -0500

The NLRB announced today that it is delaying the effective date of its notice posting rule. This is the second delay the NLRB has announced. This time, however, the NLRB stated that the delay was at the request of the federal judge in Washington, D.C. who will decide two of the three cases that business groups and others filed challenging the rule. At a court hearing earlier this week, the judge asked the NLRB to delay the effective date of the rule. The new effective date for posting the required notice is April 30, 2012.

Details of NLRB Election Rule Published; Chamber Files Lawsuit

Nelson Cary — Thu, 22 Dec 2011 17:39:48 -0500

By Nelson Cary and Micah Dawson

Earlier today, the NLRB formally published their new election rules in the Federal Register. Chairman Pearce (D) and Member Becker (D), whose term ends next week, voted in support of the new rule. Member Hayes (R) withheld his vote. Member Hayes can vote against finalizing the rule and publish a statement of dissent any time before the rule takes effect on April 30, 2012.

As expected, the new rule makes significant changes to union election procedures, including:

Empowering the hearing officer to limit evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
Eliminating the automatic right to file briefs with the regional director after the initial hearing;
Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

The rule, which has increasingly been referred to as the “ambush election” rule by those opposed to it, significantly limits employers’ legal right to object to the petitioned-for unit prior to a union election. By shortening the amount of time between petition and election, it also curtails employers' ability to communicate with workers during the union election process. With less ability to communicate, the rule limits the time during which an employee is certain to hear both sides of the story: both the case for and the case against union representation.

Even before the NLRB announced that it would publish this final rule, the U.S. Chamber of Commerce sought to nullify it. On December 20, 2011, the Chamber filed a federal lawsuit challenging the new rule. The lawsuit attacks the validity of the new rule, stating that it violates Board procedure and denies employers' free speech rights. In addition to asking the court to vacate the rule, the Chamber’s lawsuit (pdf) seeks a preliminary injunction barring the rule from being enforced.

For the labor professional, the final rule is a major development. Employers that are currently non-union should carefully consider the implications of the rule in light of their individualized circumstances. Those employers may want to revisit their strategies given this development.

The Chamber's lawsuit adds an additional level of complexity for the labor professional. After business groups filed court challenges against the NLRB's notice posting rule, the NLRB delayed the effective date of that rule. It is uncertain whether a similar delay will be announced here, given that the NLRB is at risk of losing one of its three members, and thus being unable to act.

NLRB Adopts New Election Rules Adopted

Nelson Cary — Wed, 21 Dec 2011 15:32:06 -0500

The NLRB announced today that it has formally adopted the revisions to the election rules that were originally proposed earlier this year. The official notice will be published in the Federal Register tomorrow. The rule, which some have referred to as the "quickie" or "ambush" election rule, will become effective on April 30, 2012. Stay tuned to vorysonlabor.com for additional details about the final rule.

New NLRB Nominations: President Obama Nominates Two New Candidates for Labor Board Vacancies

Nelson Cary — Sat, 17 Dec 2011 16:31:11 -0500

Earlier this week, President Obama nominated two Democrats, Sharon Block and Richard Griffin, to serve as members of the NLRB. Ms. Block currently works at the U.S. Department of Labor, an agency which has attracted attention over its controversial proposal to modify the rules governing "persuaders" in labor organizing campaigns. Mr. Griffin serves as General Counsel for the International Union of Operating Engineers. Additional information about Ms. Block and Mr. Griffin can be found in the NLRB's press release regarding their nominations.

The nominations come at an interesting time for the NLRB. Currently, there are only three members on the NLRB. One of those members, Craig Becker (D), holds a recess appointment that will expire at the end of the year. If the Senate does not act on these nominations, or the nomination of Terence Flynn (R), whose nomination has been pending for months, the NLRB will fall to two members. It will then no longer be able to issue decisions or new administrative rules.

Labor law professionals should not expect quick action on these nominations. Sen. Lindsey Graham (R-S.C.) declared, even before the President announced his nominations, that he would continue to place a "hold" on any nominees to the NLRB. According to his press release: "I will continue to block all nominations to the NLRB until we get satisfactory answers regarding their role in [the decision to issue a complaint against The Boeing Company's decision to open a new plant in South Carolina]. Given its recent actions, the NLRB as inoperable could be considered progress."

While the President could make recess appointments to the NLRB, like he did with Member Becker, the House has taken steps to remain in session. Reportedly, these steps will prevent the Senate from going into full recess, preventing recess appointments from being made.

Issues awaiting NLRB action, and that could be delayed if the NLRB were unable to act, range from a proposed rule that would speed up the union election process to a decision on a case with potentially significant impact on employer solicitation and distribution rules.

Hayes Stays: NLRB Moves Forward with Election Rule

Nelson Cary — Wed, 30 Nov 2011 20:59:27 -0500

The NLRB headed into a public vote today over a proposed rule on election procedures summarized yesterday on this blog. It did so without assurances that one of its members, Brian Hayes (R), would be present. While tensions were high, Member Hayes did attend the meeting and the NLRB voted along party lines, 2-1, to move forward with the slimmed down, but still controversial, election rule proposal. As the lone dissent, Member Hayes again made it clear that he opposed the short time frame for elections under the proposal. Despite that opposition, the final language of the rule will now be drafted for another NLRB vote before it goes into effect.

Although there was information suggesting that Member Hayes was seriously considering resigning in an effort to eliminate the NLRB’s power to move forward on the proposal, he has apparently decided against resignation. Member Hayes explained at the meeting that “it is not my nature to be obstructionist.” Further, he believed that “resignation would cause the very same harm and collateral damage to the reputation of this agency” as the rule changes the majority voted to advance.

With Hayes staying put, labor professionals should stay alert for the final language of the rule, as it is certain to have a impact on employer policies. Nor should labor professionals expect any legislative change from Congress that would trump the administrative rule. Although the U.S. House voted today to approve legislation that would do so, the prospects of that legislation appear dim in the Senate.

NLRB Chairman Pearce Announces Content of Election Rule Proposal

Nelson Cary — Tue, 29 Nov 2011 16:00:00 -0500

As reported on this blog last week, the NLRB will meet tomorrow to consider a resolution on the rule it proposed in June 2011. Today, Chairman Pearce (D) made public the resolution (pdf) that will be voted on at tomorrow's meeting. In doing so, the Chairman has disclosed what was left unanswered in the announcement of the meeting last week: what will the final rulemaking contain? According to the resolution, and the NLRB's accompanying explanation, the resolution would commit the NLRB to moving forward on six changes to the NLRB's rules:

Limiting evidence produced at the initial hearing to only that necessary to determine whether a question concerning representation exists;
Eliminating the automatic right to file briefs with the regional director after the initial hearing;
Eliminating a party's right to appeal the regional director's determinations to the NLRB prior to the election, and providing for only a single appeal, after the election, and then only over issues that the election hasn't rendered moot;
Eliminating language in the NLRB's regulations providing that elections are typically not scheduled for a date sooner than 25 days after the election petition has been filed;
Clarifying the standard for seeking special permission to appeal to the NLRB from a regional director's decision; and
Making NLRB review of the regional director's decisions discretionary, rather than mandatory.

These six changes are in line with the NLRB majority's desire to "streamline" the NLRB's election petition process. The result is to speed up the time between the filing of an election petition and the holding of a secret ballot election. This has caused many to refer to the rulemaking as the NLRB's "quickie election" rule.

As the effort to finalize these regulations moved forward, Member Hayes (R) wrote a letter to Congressman John Kline, Chairman of the U.S. House Committee on Education and the Workforce, in response to a request by Kline for information from the NLRB. Hayes was critical of the rulemaking process in this letter. When Hayes' letter became public, the Chairman responded with a scathing letter to Hayes, rebutting the statements contained in Hayes' letter. A good summary of these unusual letters can be found here.

The originally proposed rule contained a number of additional changes that the NLRB has apparently decided it will not pursue at this time. For example, the NLRB's resolution does not address the original proposal to:

Require a position statement before the initial hearing summarizing all of the parties' issues;
Require that the initial hearing be held within seven days of the date the petition is filed;
Require that the eligible voter list be produced within two days, rather than the seven currently required; and
Require that the eligible voter list contain employee e-mails and phone numbers, in addition to addresses.

It appears that the NLRB will, however, continue to deliberate over the other portions of the proposed rule. This leaves open the possibility that the other changes proposed in June could yet find their way into the NLRB's regulations.

For the labor professional, the NLRB's resolution reveals the agency's desire to get at least some final rule published prior to the end of the year. Indeed, the NLRB's explanation specifically references the "possibility that the Board will lose a quorum at the end of the current congressional session. . . ." By slimming down the proposal, the NLRB can move the proposal to a final rule more quickly while still leaving on the table the other changes proposed.

There is a wild card still in play that is important to note. The Hayes/Pearce letters reveal that Hayes has threatened to resign. If he did so, it would take the NLRB down to only two members. This would likely deprive the NLRB of the necessary quorum to adopt the final rules.

Finally, the NLRB's announcements today do not reveal the actual language of the amendments. They simply summarize which portions of the regulations will be changed. Thus, the full impact of the proposed changes is difficult to assess. It is clear, however, that for those on the management side, the changes will not be welcome.

NLRB to Vote on Election Process Rule

Nelson Cary — Sat, 19 Nov 2011 10:02:32 -0500

The NLRB announced yesterday that it will hold a public meeting on November 30, 2011. At the meeting, the three remaining NLRB members will discuss and vote on the so-called "quickie election" rule that the NLRB proposed in June 2011. As previously discussed on this blog, the changes in the proposed rule range from permitting electronic filing of certain documents (hardly the most controversial measure in the proposal) to limitations on a party's right to litigate certain voter eligibility and other issues at the outset of the representation election process.

According to the NLRB's announcement, Chairman Pearce will propose issuing a final rule that is limited to "several provisions designed to reduce unnecessary litigation." Which specific provisions in the proposed rule those might be are unclear from the announcement. The limitations on so-called "unnecessary" litigation, however, are the more controversial proposals in the rule.

The NLRB's action comes the day after the U.S. House of Representatives took action to move a bill designed to forestall parts of the proposed rule to the full House for a vote. H.R. 3094 (pdf), entitled the "Workforce Democracy and Fairness Act," cleared the House Rules Committee on November 17. That bill would amend the NLRA to provide, among other things, that there must be a minimum of 35 days between the filing of an election petition and the holding of an election.

Although the NLRB's announcement does not reference H.R. 3094, it does acknowledge the possible loss of the NLRB's third member at the end of the year. If the NLRB drops to two members (Member Becker's recess appointment expires at the end of this year), it will be unable to issue decisions or new regulations, as the Supreme Court ruled in 2010.

Labor professionals wishing to attend the NLRB's meeting must contact the agency via e-mail. Those attending, however, will not be permitted to participate. The hearing will also be webcast. Additional information about the NLRB's action can be found in its announcement.

One for the Employer: Social Media Posting Results in Lawful Termination

Nelson Cary — Thu, 10 Nov 2011 05:30:00 -0500

By Nelson Cary and Ashley Manfull

Recent actions by the NLRB’s Acting 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. The fear, based on these prior actions, is that disciplinary action will result in an unfair labor practice charge for interference with protected concerted activity. However, in its most recent Advice Memorandum (pdf), the NLRB’s Office of the General Counsel (Office) has affirmed that employee social media postings are not automatically protected by Section 7 of the NLRA and may be grounds for termination in appropriate circumstances.

In the Memorandum, the Office opined that an employer did not engage in an unfair labor practice by dismissing an employee who named his employer on his LinkedIn profile and used a vulgar, derogatory term for his job title. The former employee claimed that the fake job title was only meant as a joke and had been on his LinkedIn page for over a year before his discharge. The employee alleged that the true reason for his termination was his recent discussions with coworkers regarding a successful employee wage and hour lawsuit at another company and whether the employer’s similar overtime policy may be unlawful.

The Office determined that even though the discharge occurred in close proximity to the former employee’s protected discussions with his coworkers, there was no link between those discussions and his termination. Rather, the employer had only recently discovered the offensive LinkedIn posting when it reviewed employee posts as part of an assessment of problems with its own LinkedIn page. Upon observing his LinkedIn profile, the employer discharged the employee based on its communications usage policy, prohibiting obscene, defamatory, harassing and/or abusive language regarding the employer.

While the Office commented that the employer’s policy may be overbroad by including the word “harassing,” which could reasonably be construed to preclude protected conduct, it found no violation. The Office reasoned that the former employee’s comment on LinkedIn clearly was not protected activity. The “fake” job title was offensive on its face and had nothing to do with the former employee’s verbal conversations with coworkers regarding the company’s overtime policies.

It is important to note that the Memorandum is not a decision by the NLRB. Rather, it is an administrative pronouncement by the division of the NLRB responsible for deciding whether a violation occurred and, if so, initiating enforcement proceedings. Thus, until the NLRB rules on these issues, the law will continue to evolve.

Labor professionals are well-advised to review employee disciplinary events arising from social media postings on a case-by-case basis. The Memorandum makes clear that all such postings are not automatically protected under Section 7. It does, however, demonstrate the need to consult with qualified labor counsel when confronted with questions of protected concerted conduct.

Senate Bill 5 Defeated in Statewide Balloting

Nelson Cary — Wed, 09 Nov 2011 10:25:29 -0500

Ohio voters defeated Issue 2 yesterday by a vote of 61% to 39%. If passed, Issue 2 would have permitted Senate Bill 5 to take effect. According to one report, the ballot question saw the union "vote no" campaign spend heavily to achieve victory, to the tune of $24 million.

While the political fallout of the result will be debated for some time, and has already begun, the implications for the labor professional are considerably more clear. The failure of Issue 2 means that current law continues in effect, including the dispute resolution mechanisms like fact-finding and binding conciliation for safety-related employees. The only thing to monitor now is whether proponents of Senate Bill 5 will attempt to pass the pieces of it that received favorable polling response, such as the requirement to pay at least 15% of the cost of health insurance coverage, merit pay, and pension "pickups."

UPDATE: Issue 2 Support Down in Latest Poll

Nelson Cary — Mon, 31 Oct 2011 18:39:08 -0500

Opponents of Issue 2 -- the ballot question regarding the public sector collective bargaining reform bill in Ohio -- got an apparent boost from some recently released polling data. According to the latest Quinnipiac University poll released on October 25, support for the reform law has declined. The poll showed that 57% of Ohioans support the repeal of Senate Bill 5 while only 32% oppose repeal. The gap of 25% is an increase over the poll results conducted about a month ago.

Nevertheless, an interesting counter-point appeared later in the week, on the heels of the poll results. In a post on The Washington Post blog, Greg Sargent reports on an internal labor memorandum analyzing the poll results. Among other things, Mr. Sargent quotes the memorandum as questioning whether a poll can accurately predict voter turnout for a ballot initiative and observing that polling on other ballot initiatives in the past has been inaccurate.

For the labor professional, the uncertainty about the law in Ohio will be resolved soon enough. The general election is on November 8.

UPDATE: NLRB Delays Notice Posting Compliance Deadline

Nelson Cary — Wed, 05 Oct 2011 13:20:25 -0500

The NLRB announced today a delay in the effective date of its recently published final rule requiring the posting of a notice of employee rights under the NLRA. Employers subject to the NLRB's jurisdiction are now expected to have the notice posted by January 31, 2012. The rule was previously set to take effect on November 14, 2011.

According to the NLRB's press release, the delayed effective date of the rule was "to allow for enhanced education and outreach to employers, particularly those who operate small and medium sized businesses." Of course, as readers of this blog know, there are also pending three federal court lawsuits challenging the NLRB's rule. Those suits seek to invalidate the rule in its entirety. The NLRB's press release doesn't reference these suits.

ALJ Finds No Violation for Termination Over Facebook Posting

Nelson Cary — Tue, 04 Oct 2011 05:00:00 -0500

By Nelson Cary and Ashley Manfull

On September 28, 2011, NLRB Administrative Law Judge (ALJ) issued a decision regarding the Section 7 rights of employees who criticize their employers via electronic media. This decision comes approximately three weeks after the decision in Hispanics United of Buffalo, ALJ Case No. 3-CA-27872, where an ALJ ruled that five employees were unlawfully terminated based on a series of Facebook posts regarding their working conditions.

In Karl Knauz Motors, Inc. and Robert Becker, ALJ Case No. 13-CA-46452 (pdf), the ALJ ruled that a car dealership acted lawfully in terminating sales employee Robert Becker based on one of two Facebook posts. In his first post, Becker posted pictures and sarcastic commentary of a customer event at the Company’s BMW dealership launching its latest luxury vehicle. Becker was upset with the Company’s food selection for the launch, so he posted pictures of the food display and salesmen posing with the food, along with various negative comments about how the company “went all out” for such an important launch. Becker and several other salesmen had raised concerns about the food in a sales meeting before the launch, concerned that a cheap event could impact their commissions.

In his second post, Becker posted pictures of an accident involving a Company vehicle at the Company’s next door Land Rover dealership. A customer’s minor son entered a running vehicle and caused it to run over another customer’s foot, travel down an embankment and land in a pond. Becker posted pictures of the distraught customer’s son and the wrecked vehicle, along with sarcastic comments about the incident.

The Company terminated Becker’s employment due to his inappropriate comments on Facebook. The Company asserted that while Becker’s comments about the food at the sales launch were inappropriate, his termination was based on his Facebook posting regarding the Land Rover accident because he was making light of an extremely serious situation. Becker filed a Complaint alleging he was terminated for engaging in protected, concerted activity.

The ALJ accepted the Company’s evidence that Becker was terminated solely for the Land Rover posting. The ALJ found that the posting did not constitute protected concerted activity because the incident had no connection to the terms and conditions of Becker’s employment and Becker never spoke to any other employees about the incident or posting.

Interestingly, the ALJ did note that Becker’s first posting constituted protected, concerted activity. While Becker made an individual decision to post those comments, the posting was a “logical outgrowth” of the prior comments that the other salesmen made at the pre-launch sales meeting. The “mocking and sarcastic tone” of the post was not alone sufficient to rise to the level of disparagement which would deprive the activity of its protection.

Finally, and of particular note to the labor professional, four employee handbook policies were also challenged. The ALJ found that three of them were unlawful, including one that prohibited employees “from being disrespectful or from using language that damages the reputation of the Company” and another requiring “outside inquiries concerning employees” to be directed to the human resources department. The ALJ evaluated these policies and determined that these policies interfered with employees’ Section 7 rights.

As issues surrounding employees’ use of Facebook and other electronic media continue to develop, practicing labor professionals should be cautious when terminating employees for conduct that might be considered protected, concerted activity. In addition, the ALJ’s ruling on the employee handbook policies is a good reminder to review such documents regularly to identify potential problems.

New Poll Finds Issue 2 Gap Narrowing

Nelson Cary — Wed, 28 Sep 2011 06:00:00 -0500

Among other ballot initiatives Ohio voters will have a chance to pass on this November is Issue 2. It asks whether the law reforming Ohio's public sector collective bargaining law, Senate Bill 5, should be rejected.

Polls on Issue 2 have not been favorable for those who want to keep Senate Bill 5. The gap is, however, decreasing according to the latest poll conducted by Quinnipiac University in Connecticut. In the last poll conducted in July, voters favored repeal of the law 56% - 32%. The more recent numbers show repeal is still favored, but by a margin of 51% - 38%.

As readers of this blog know, the law contains a number of different elements, including limits on health care costs, merit-based pay, prohibition on strikes by public employees, and an elimination of "fair share" fees. The poll appears to have tested some of these parts of the proposal, finding majority support for health care cost containment measures and merit-based pay, but no majority support for prohibiting strikes. The fair share fee question does not appear to have been polled.

UPDATE: Comments Submitted on DOL Persuader Rulemaking

Nelson Cary — Sun, 25 Sep 2011 11:23:28 -0500

Earlier this year, the DOL proposed a rule that would change many decades of interpretation of a federal law known as the Labor-Management Reporting and Disclosure Act (LMRDA). The effect of the proposal is to radically expand the definition of "persuader" activities while limiting the definition of "advice" activities. The distinction is very significant: if an employer and an advisor -- like a lawyer or consultant -- are engaged in the former, each must file reports with the federal government disclosing, among other things, the agreement to perform persuader activities, including the financial terms of that agreement.

The DOL took comments on its proposed rule, even extending the comment period. That period closed last week. The proposed rule elicited nearly 6,000 comments, including submissions from the U.S. Chamber of Commerce and many other business and labor groups.

Indeed, in a sign of just how significant the proposed rule is, even the American Bar Association (ABA) submitted comments to the rule. The ABA comments (pdf) focus on the impact of the proposed rule on the attorney-client relationship, and the ability of labor lawyers to provide advice to their clients. The ABA notes that, with respect to lawyers, the new interpretation "would essentially nullify the advice exemption contained in the statute and thwart the will of Congress. . . ."

Labor professionals should monitor the developments on this important, proposed rulemaking. The impact of these regulations on employer speech during a union organizing effort could be quite significant. If the DOL's proposed interpretation is adopted, labor professionals will need to be prepared. Consulting now with labor counsel is an important first step.

UPDATE: Business Groups File Lawsuits Against NLRB Notice Posting Rule

Nelson Cary — Sun, 25 Sep 2011 10:48:15 -0500

If the lawsuits of three different business groups are successful, the federal courts will have the last say about the validity of the NLRB’s notice posting rule. The National Association of Manufacturers (NAM), the National Federation of Independent Businesses (NFIB), and the U.S. Chamber of Commerce (Chamber) are each parties in three different lawsuits pending in federal courts seeking injunctions against the NLRB’s rule.

The Chamber’s lawsuit (pdf) is representative of the arguments raised against the notice posting. For example, the Chamber asserts that the NLRA doesn't give the NLRB the authority to promulgate a notice posting rule in the first place. This is one of the arguments that Member Hayes (R) made in his dissent to the notice of proposed rule-making many months ago. The Chamber also asserts, among other things, that the rule is not a balanced view of employee rights under the statute and that it violates employers’ First Amendment right to freedom of speech.

The Chamber’s lawsuit was the most recent one filed, and the Chamber picked South Carolina as the jurisdiction in which to file. The Chamber made an interesting forum choice given the NLRB’s pending complaint against Boeing’s new facility in that state. The NFIB and NAM both filed their complaints in the District of Columbia.

For the labor professional, the progress of these suits will be important to monitor. One or more of the courts could issue a preliminary injunction against the enforcement of the rule. The practical effect of such a development would be to delay the obligation to post the notice the rule requires.