Today’s Labor Updates:

National Labor Relations Board General Counsel issues guidance on employee handbook provisions

Regional directors report data on the NLRB’s amended election rules after one month – court challenges continue

NLRB set to clear all cases affected by Noel Canning decision

National Labor Relations Board General Counsel issues guidance on employee handbook provisions

Greenbaum, Rowe, Smith & Davis LLP – Lisa J. Clapp

USA May 19 2015

On March 18, 015, the Office of the General Counsel of the National Labor Relations Board (NLRB), the federal agency primarily responsible for administering and enforcing the National Labor Relations Act, issued guidance regarding certain common employee handbook provisions that may violate the Act.  The recent guidance will likely require changes to many standard employment policies governing, among other areas, workplace civility among employees and toward employers, confidentiality, harassment, conflicts of interest, use of computers, email and social media, and employee use of employer trademarks and other protected property.

The Act establishes the rights and obligations of employees, employers and labor organizations with respect to collective bargaining and related activity.  Section 7 of the Act, in particular, gives employees the right to form, join or assist labor unions and engage in other “concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Such protected “concerted activities” (referred to as “Section 7 activity”) include employee communications with each other and certain outside parties regarding wages, hours, benefits and other terms and conditions of employment.  The Act makes it an “unfair labor practice” for an employer “to interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in section 7.”  The Act’s protections apply to most private-sector employees, regardless of whether they belong to a union or the size of their employer.

A workplace policy that does not explicitly prohibit Section 7 activity nonetheless violates the Act if employees reasonably would interpret the policy to prohibit protected activity.  According to the General Counsel’s recent guidance, the following common employee handbook provisions may violate the Act because they are overbroad or otherwise could have a chilling effect on permitted Section 7 activity:

• Policies that prohibit, or reasonably could be construed to prohibit, employees from discussing their working conditions, including wages, hours, benefits, workplace complaints, safety and personnel information, or that do not allow employee disclosure to third parties of employee handbooks or other workplace policies.  For example, policies permitting employees to discuss work matters with other employees only when there is a specific business reason to do so, or prohibiting them from discussing salaries, bonuses or other “confidential employee information,” generally have been found to violate the Act.
• Policies that require employees to be respectful of their employer or that prohibit conduct that would damage the employer’s business or reputation, including public criticism of the employer.  Even policies prohibiting only false employee statements that are critical of or damaging to an employer may nonetheless violate the Act.
• Policies that prohibit “offensive,” “derogatory,” “insulting,” “embarrassing,” “intimidating” or “inappropriate” comments to fellow employees have been found to be unlawfully overbroad because, in certain cases, they limit employees’ rights to engage in protected discussions regarding unionization, criticism of supervisors or managers, or other protected concerted activity.
• Policies that prohibit employee use of the employer’s name, logos, trademarks or copyrighted material without the consent of the employer have been deemed unlawfully overbroad and violative of employee rights under Section 7.
• Policies that contain blanket prohibitions on employees taking unauthorized workplace pictures or video, or using or possessing personal electronic equipment or data storage devices on employer property, could violate the Act.
• Policies prohibiting employee conduct that conflicts with the employer’s interests, absent clarification that the policy excludes protected Section 7 activity, generally violate the Act.

The General Counsel’s guidance finds unlawful a number of widely used employment policies on the basis that they are vague and overbroad and, whether or not intended, could be construed as prohibiting protected employee conduct.  Unfortunately, the guidance does not provide a clear roadmap to help employers appropriately tailor their workplace policies to protect legitimate business interests without restraining employees’ exercise of rights protected under Section 7.  The guidance is fact specific and, in some respects, nuanced and difficult to apply.  For example, certain handbook provisions, standing alone, are deemed overbroad as impinging on Section 7 activity, while similarly worded provisions are deemed lawful when viewed in context or accompanied by examples to clarify that the policies are not intended to prohibit discussion of working conditions or other protected activity.  As a result, it is not always clear under the guidance why one policy is lawful and another policy, seemingly intended to address the same workplace conduct, is not.

Employers are always well-advised to review their employee handbooks on a regular basis to help ensure their compliance with rapidly evolving employment laws and changes in employer policies and procedures.  While courts may ultimately disagree with the position of the NLRB in certain instances, employers who ignore the recent guidance of this agency would do so at their own peril.

In addition, in view of the recent flurry of NLRB decisions and other guidance impacting employer policies, including the recent handbook guidance discussed above, it would be especially prudent for employers to review their employee handbooks with their counsel to help ensure that they are up-to-date and compliant with the standards enunciated by the NLRB.

Regional directors report data on the NLRB’s amended election rules after one month – court challenges continue

Epstein Becker Green – Steven M. Swirsky and Evan J. Spelfogel

USA May 19 2015

May 14th marked the one month anniversary of the effective date of the NLRB’s Amended Representation Election Rules.  That day the Regional Directors for NLRB Regions 2 (New York, NY), 22 (Newark NJ) and 29 (Brooklyn NY) discussed their offices’ experiences processing representation petitions filed since the Board’s Amended Election Rules  took effect on April 14th. The following day, Friday May 15th, in Washington, D.C., US District Court Judge Amy Berman Jackson heard argument on plaintiffs’ motion for summary judgment in the lawsuit brought by the US Chamber of Commerce and other business groups challenging the new rules as violative of the National Labor Relations Act. The hearing focused on the plaintiffs’ claims that the new election rules violate the Act and the Administrative Procedures Act. While it is generally not possible to predict from argument how the court will rule, Judge Jackson appeared skeptical that the plaintiffs had established that they were entitled to summary judgment at this stage.

While respect to how the new rules are actually impacting the number of representation petitions being filed, how they are being processed and how the new rules are effecting election results. one month may not be representative, the data to date offers insights that will be of interest to employers, unions and attorneys in this area, perhaps the most interesting insights concerned the fact that in these 3 Regional Offices, there were NO hearings held on petitions filed since the amended rules took effect and in every case, either the parties entered into a stipulated agreement between the petitioning union and the employer for an election or the petitioning union withdrew its petition. Of a total of 32 petitions filed in these regions during the one month period, 8 went to an election and 24 were withdrawn prior to an election could be conducted.

According Regional Directors Karen Fernbach (Region 2), David Leach (Region 22) and James Paulsen (Region 29), the stipulated elections were scheduled for between 25 and 30 days following the dates the respective petitions were filed.  This data confirmed the expectation that the amended rules would result in elections taking place much closer to the filing date than under the long standing rules that they replaced.  Under the former rules, in recent years most elections have been held in the range of 36 to 42 days after the filing.  What is not clear at this point is how many of the petitions that were withdrawn after employers filed Statements of Position challenging the proposed units as inappropriate.  Under the amended election rules, if an employer contends that the unit must include additional classifications and/or locations, the employer must provide both the regional office and the petitioning union with the names, classifications, work locations and shifts of the employees the employer believes must be included in the union.  Once a union receives that data, it very well may choose to withdraw its petition and then expand its organizing to include such additional employees, armed with the information about them.

The Regional Directors also reviewed the procedures that the new rules put into place, which were recently summarized in Memorandum issued by the Board’s General Counsel Richard F. Griffin, Jr. in General Counsel Memorandum 15-04.  It was clear from the Regional Directors’  remarks and their answers to many probing questions that employers would have to respond within days after a union files a representation petition by submitting to the NLRB Regional Office, by e-filing, an explanation of all unit, placement and related issues they intended to raise at pre-election hearing, together with lists of names and job titles or classifications of not only all person who fell within the description of the alleged appropriate unit included on the union’s petition, but also of all persons whom the retailer believes should be included in the unit.  These must be provided to the union as well as the Board.

Any issues not raised in the employer’s Statement of Position, which must be filed and served on the union within 7 days of the filing of the petition and not later than noon the day before the hearing is scheduled, will be waived.

A notice of hearing will be transmitted immediately to the parties, by email, and the hearing will be set for eight days later.  The employer will be allowed at hearing to litigate only those issues it raised in its pre hearing statement.  And, as to many of those issues, it will be allowed to make only pro forma arguments.  According to the three New York area Regional Directors, unless the employer  has raised eligibility issues as to more than 20% of the total voter complement, all unit placement and eligibility arguments will be reserved for the challenged ballot process at the election or for a post-election hearing.  Obviously, if the challenged ballots are not determinative, issues as to those voters will never be heard. While this benchmark is not included in the amended rules, it has been mentioned on a number of occasions by representatives of the NLRB at various training programs conducted for the labor and management bars throughout the country.  It appears that this 20% standard has now replaced the 10% threshold that the Board relied upon under the prior rules and procedures.

In response to a series of questions as to how an employer could reserve its positions on issues for later Board or Court of Appeals review after it refuses to bargain with a union election winner, the Regional Directors acknowledged only that they might wish to make offers of proof at the pre-election hearing…but added that hearing officers would be under instructions not to burden the R case record with protracted offers of proof, or to allow a party to delay the hearing “unnecessarily.”  Further, the Regional Directors stated that they were under orders not to allow hearings to go on for too long, and not to allow any post hearing briefs.  All argument would have to be made orally at hearing.

Finally, the Regional Directors reminded attendees that within two business days of a stipulated election agreement or a Regional Director Decision and Direction of Election, the employer  will be required to submit to the Regional Office AND to the union electronically, in searchable format, a detailed list of all persons with job descriptions/titles, within the unit, all persons outside the directed unit whom the employer asserted should have been in the unit, and all persons it expected to challenge at the polls, together with their email addresses and home telephone numbers.  An important change to this Excelsior List requirement under the amended rules is that not only must an employer provide employees’ names and home addresses, it must also provide the NLRB and the union with the employees’ home telephone numbers and their personal email addresses to the extent that the email addresses are reasonably available.

The new NLRB Representation and Election Rules will be a significant challenge for employers and their counsel.  More importantly, all of this will be layered on to at most a two week time frame, making it nearly impossible for diligent clients and their attorneys to comply with the law, and requiring employers to focus year round on appropriate practices and communications to their employees concerning the benefits of maintaining a non-union status.

 This document has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2015 Epstein Becker & Green, P.C. 

NLRB set to clear all cases affected by Noel Canning decision

by The HR Specialist on May 19, 2015 6:00am

According to National Labor Relations Board Chair Mark Gaston Pearce, the NLRB is on track to resolve by June 26 all cases that were returned to it when the Supreme Court ruled that three recess board appointments made in 2012 were unconstitutional.

Testifying before a subcommittee of the Senate Appropriations Committee on May 14, Pearce said 16 cases remain from an original docket of 103 that were affected by the Supreme Court’s 2014 decision in NLRB v. Noel Canning. In that case, the Supreme Court unanimously ruled that President Obama did not have the authority to appoint former NLRB members Sharon Block, Richard Griffin, and Terence Flynn while the Senate was out of session.