Today’s Labor Updates:
Managing the risks of a mobile workforce
Coming to your workplace soon? Union organizing efforts via the company’s email system
Summary of NLRB Decisions for Week of May 19 – 23, 2014
Managing the risks of a mobile workforce
Carlton Fields Jorden Burt James M. Sconzo USA May 27 2014
Retiring after 30 years with the same company is rare today. The symbolism of a retirement party and a gold watch will be lost on generations as frequent employee transition between companies becomes the norm. While growing enterprises may find the availability of vibrant human capital attractive, employee transition can bring significant risk. Critically, departing employees often take with them their former employer’s intellectual property or competitive advantages.
Some industries, such as several large Wall Street wirehouses, have come together to establish protocols for employee transitions between their businesses. These protocols attempt to establish an orderly process that protects customers while balancing various competing business interests. Other companies, however, must rely on confidentiality and non-competition agreements with employees.
In Silicon Valley, tech sector companies sought to stem “poaching” by agreeing not to hire away talent. Those agreements were challenged by 64,000 workers in a class action alleging the pacts are anticompetitive and designed to keep pay artificially low (In re: High-Tech Employee Antitrust Litigation, N.D.Ca. No. 5:11-cv-02509-LHK). In April, a $324,500,000 settlement was tentatively reached, but recently some class members objected to the amount as too low. A hearing is scheduled for June.
Engagement and protection of human capital are vital to the success of any business. When an employee departs, the employer should be mindful of protecting its intellectual property and proprietary business advantages. If the facts and law support it, the employer’s best option may be to file a lawsuit quickly seeking a temporary restraining order. Regardless, employers should take preventative measures to prevent employee subversion, which will solidify their position should litigation arise. These include ensuring that non-compete agreements are enforceable in a world that is increasingly hostile to them, and implementing policies adequate to protect electronic and other company information from misappropriation.
The assessments necessary when on-boarding new employees are equally important. Prudence requires the on-boarding employer to analyze the enforceability of any non-compete or restriction on the employee. Likewise, the company should have policies and agreements regarding its intellectual property and confidential business methods. The hiring employer must also proceed very carefully when recruiting employees, particularly those who may have some legally recognized duty of loyalty to the former employer. Careful consideration of the current state of the fast-evolving law on these and other relevant issues will be key to avoiding or defeating legal claims by the former employer.
More on the use of Company email by unions.
Coming to your workplace soon? Union organizing efforts via the company’s email system
Foley & Lardner LLP Daniel Kaplan USA May 27 2014
In late 2007, the Bush-era National Labor Relations Board issued what has since simply become known as the Register Guard decision. In that decision, a divided Board (along political lines) held that employees have no specific legal right to use their employer’s email system for nonbusiness purposes (for example, to elicit support for union representation). At the time, and since, Register Guard has been viewed as a watershed decision recognizing an employer’s right to control its email system in a manner so as not to allow it to be subverted for union organizing efforts.
However, the dissent in Register Guard argued, among other things, that email use in the workplace is so prevalent in today’s business world that it is little different than face-to-face communication. As such, just as an employer cannot prohibit individual solicitation of union support during a break or on personal time, an employer should not be able to prevent an employee from using its email system to facilitate that process.
With the new, now fully constituted Board, it has been widely expected that many of the Bush-era determinations may be in jeopardy because the Board has increasingly become a highly political creature. Board member terms are five years in length, and are staggered so that each President has the ability to nominate and place Board members during his term. In addition, it has long been recognized that the majority of the Board will be of the same political persuasion as the sitting President – presently the Democratic Party. And now, with the Board constituted solely by Obama Administration appointees, it appears likely that Register Guard is about to fall.
On April 30, 2014, the Board issued a Notice and Invitation to File Briefs in a matter known as Purple Communications, Inc. Typically when the Board solicits such submissions, it signals its intend to overturn a prior decision. In fact, here, the invitation itself specifically asks submissions to address the request to overrule Register Guard and adopt a rule wherein employees who are permitted to use their employer’s email for work purposes have the right to use the email system for organizing efforts, subject only to the need to maintain production and discipline.
According to the union’s counsel involved in Purple Communications, the union will argue that if an employer has an email system, employees have the right to use it for organizing activities so long as it is done on personal, non-work time. And, taking this one step further, the union will also argue that if employees are allowed to use their employer’s email system for personal purposes during work time, then they may also use the system for organizing efforts and union communication during work time; that is, there should be no restrictions on how the email system is used.
Purple Communications has the likelihood to be the most significant decision issued by the Board this year; especially since it is widely expected that it will serve as the vehicle to overturn Register Guard. And, when that happens, employer email systems will likely become the most important tool in the union organizing tool chest.
Summary of NLRB Decisions for Week of May 19 – 23, 2014
The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.
Summarized Board Decisions
Latino Express, Inc. (13-CA-077678, et al.; 360 NLRB No. 112) Chicago, IL, May 21, 2014.
The Board found that the Respondent Employer violated the Act by failing to bargain in good faith for a first contract with the Union, unilaterally changing work place rules, and withdrawing recognition from the Union. The Board also affirmed the judge’s denial of the motion of employee petitioners in a decertification case to intervene in this case, his denial of the petition of those employees’ attorney to revoke the General Counsel’s subpoena of the attorney to testify, and the modified sequestration procedure the judge used with respect to this attorney. Charges filed by Teamsters Local Union No. 777, affiliated with the International Brotherhood of Teamsters, AFL-CIO. Administrative Law Judge David I. Goldman issued his decision on October 30, 2013. Chairman Pearce, and Members Johnson and Schiffer participated.
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FJC Security Services Inc. (10-RC-115744; 360 NLRB No. 115) Nashville, TN, May 21, 2014.
The Board denied the Employer’s Request for Review of the Regional Director’s Decision and Direction of Election. In denying review, the Board stated that it did not rely on the Regional Director’s finding that UGL-UNICCO Service Co., 357 NLRB No. 76 (2011), and Lee Lumber & Building Material Corp., 334 NLRB 399 (2001), are inapplicable because the Employer and Intervenor reached an agreement prior to the filing of the petition. Instead, the Board concluded—for the reasons stated by the Regional Director—that there was no successor bar at the time the petition was filed because under UGL-UNICCO and Lee Lumber, a “reasonable period for bargaining” had elapsed. The Board noted that no party argued that the Board should modify or overrule UGL-UNICCO. Member Miscimarra concurred, but stated his belief that UGL-UNICCO is inappropriate and inconsistent with the Act. Instead, Member Miscimarra would adhere to the standard established in MV Transportation, 337 NLRB 770 (2002), which UGL-UNICCO overruled. Under that standard, Member Miscimarra would find that the petition in this case warrants an election, without any evaluation of whether a “reasonable period for bargaining” had elapsed. Petitioner—United Government Security Officers of America International Union and Its Local 350. Intervenor—International Guards Union of America, (IGUA) Local 137. Chairman Pearce, and Members Miscimarra and Schiffer participated.
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Healthbridge Management, LLC; 107 Osborne Street Operating Co. II, LLC d/b/a Danburg HCC; 710 Long Ridge Road Operating Co. II, LLC d/b/a Long Ridge of Stamford; 240 Church Street Operating Co. II, LLC d/b/a Newington Health Care Center; 1 Burr Road Operating Co. II, LLC d/b/a Westport Health Care Center; 245 Orange Avenue Operating Co. II, LLC d/b/a West River Health Care Center; 341 Jordan Lane Operating Co. II, LLC d/b/a Wethersfield Health Care Center (34-CA-012964 and 013064; 360 NLRB No. 118) Fort Lee, NJ, May 22, 2014.
A Board panel unanimously affirmed the judge’s finding that, under Bethlehem Steel Co., 136 NLRB 1500 (1962), the Respondent did not violate Section 8(a)(5) and (1) by ceasing to honor employees’ dues-checkoff authorizations after the expiration of the parties’ collective-bargaining agreements. Although the Board overruled Bethlehem Steel in WKYC-TV, 359 NLRB No. 30 (2012), the Board also decided to apply the new rule prospectively only. The Board panel also unanimously affirmed the judge’s finding that the Respondent violated Section 8(a)(1) by removing Union flyers, bearing the message that the Respondent had been “Busted” by the NLRB, from a Union bulletin board and by prohibiting employees at Newington Health Care Center and Westport Health Care Center from wearing stickers bearing the same “Busted” message in all areas of the facility. A Board panel majority consisting of Members Hirozawa and Schiffer adopted the judge’s finding that the Respondent also violated Section 8(a)(1) by prohibiting employees at Danbury Health Care Center, Long Ridge of Stamford, West River Health Care Center, and Wethersfield Health Care Center from wearing the “Busted” sticker in immediate patient care areas. The majority stated that, although bans limited to immediate patient care areas ordinarily enjoy a presumption of validity, under Saint John’s Health Center, 357 NLRB No. 170 (2011), an employer must demonstrate the existence of “special circumstances” to justify a selective ban on only some nonofficial insignia. The Board panel majority found that the Respondent did not meet that burden. In dissenting as to the selective ban limited to patient care areas at Danbury Health Care Center, Long Ridge of Stamford, West River Health Care Center, and Wethersfield Health Care Center, Member Miscimarra would find that such a ban was entitled to a presumption of validity. Further, Member Miscimarra would find that the ban was justified under the “special circumstances” test. Charges filed by New England Health Care Employees Union District 1199, SEIU, AFL-CIO. Administrative Law Judge Steven Davis issued his decision on July 20, 2012. Members Miscimarra, Hirozawa, and Schiffer participated.
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Le Fort Enterprises, Inc. d/b/a Merry Maids of Boston (01-CA-123707; 360 NLRB 119) Dorchester, MA, May 22, 2014.
The Board granted the General Counsel’s motion for summary judgment in this refusal-to-bargain test-of-certification case on the ground that the Respondent did not raise any issues that were not, or could not have been, litigated in the underlying representation case in which the Union was certified as the bargaining representative. The Board also found that the Respondent’s unsupported affirmative defenses that the complaint failed to state a claim on which relief could be granted; that the proceeding was barred by waiver, estoppel, and unclean hands; and that some of the allegations were untimely, are insufficient to warrant denial of the motion. Charge filed by International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 7, AFL-CIO. Chairman Pearce, and Members Hirozawa and Johnson participated.
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Intertape Polymer Corp. (11-CA-077869, et al.; 360 NLRB No. 114) Columbia, SC, May 23, 2014.
A Board panel majority consisting of Members Hirozawa and Schiffer adopted the Administrative Law Judge’s findings that the Respondent violated Section 8(a)(1) of the Act by interrogating an employee regarding his union sentiments, confiscating union literature from employees’ breakroom, and engaging in surveillance of employees’ union activities by leafleting at the plant gate. The majority ordered a new election based on these violations. Member Miscimarra agreed that the Respondent unlawfully confiscated union literature, but dissented from the majority’s findings of an unlawful interrogation and unlawful surveillance. Member Miscimarra would not have ordered a new election because he found that the Respondent’s conduct was so minimal that it could not have affected the election results. A different panel majority, Members Miscimarra and Schiffer, reversed the judge’s finding that the Respondent made an unlawful threat of futility because the complaint did not allege a threat of futility and counsel for the General Counsel made it clear that he was not pursuing such a theory when questioned at the hearing by the judge. Member Hirozawa, dissenting, would have adopted the judge’s finding because the violation was closely connected to other complaint allegations and was fully and fairly litigated. Charges filed by United Steel, Paper & Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union, AFL-CIO-CLC. Administrative Law Judge Robert A. Ringler issued his decision on February 20, 2013. Members Miscimarra, Hirozawa, and Schiffer participated.
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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Giles and Ransome Inc. (04-RC-124785) Bensalem, PA, May 20, 2014. Order denying Employer’s request for review of the Regional Director’s decision and direction of election on the ground that it raised no substantial issues warranting review. Petitioner–International Union of Operating Engineers, Local 542, AFL-CIO. Chairman Pearce, and Members Johnson and Schiffer participated.
Olean General Hospital (03-RC-111355) Olean, NY, May 2014. No exceptions having been filed to the Administrative Law Judge’s recommended disposition of objections and challenged ballots in an election held October 25, 2013, the Board adopted the Judge’s findings and recommendations, and directed the Regional Director to open and count the challenged ballots of 11employees, prepare a revised tally of ballots, and issue the appropriate certification.
Klochko Equipment Rental Company, Inc. (07-RC-104929) Saginaw and Melvindale, MI, May 21, 2014. The Board adopted the hearing officer’s recommendations to overrule the Employer’s objections to a self-determination election. The Board found no evidence that the Petitioner misrepresented to the sole eligible voter that he would be covered by a separate collective-bargaining agreement than that covering the employees in a Melvindale, MI bargaining unit if he voted for representation by the Petitioner. Accordingly, the Board certified that Petitioner Local 324, International Union of Operating Engineers, AFL-CIO may bargain for the employee/voter who works at the Employer’s Sagninaw, Michigan plant, as part of the existing collective-bargaining unit of mechanics and truck drivers working at the Employer’s Melvindale Michigan plant, which unit is currently represented by the Petitioner. Chairman Pearce, and Members Miscimarra and Hirozawa participated.
Rehabcare Group of California, LLC d/b/a Rehabcare (21-RC-116808) Westminster, CA, May 23, 2014. A Board panel majority of Chairman Pearce and Member Hirozawa denied on the merits the Employer’s request for special permission to appeal the Regional Director’s Order Withdrawing Approval of the Stipulated Election Agreement and Order Cancelling Election. The majority found that the Regional Director did not abuse her discretion, and acted consistent with the Board’s Casehandling Manual, Part Two, Representation Proceedings. The majority stated that the Regional Director was faced with the prospect that approximately half of the employees would be voting subject to challenge. Member Miscimarra, dissenting, would have granted the Employer’s appeal and find that the Union remains bound by its election agreement. Member Miscimarra found that, to the extent that a party discovers that there were fewer employees than it had anticipated in classifications that were stipulated to using the names of the classifications, this situation does not constitute an “unusual circumstance” warranting withdrawal from the stipulation. Chairman Pearce, and Members Miscimarra and Hirozawa participated.
Boulevard Health Center (07-RD-107966) Rochester Hills, MI, May 23, 2014. The Board denied the individual Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the decertification petition. The Board stated that its affirmance of the Regional Director’s dismissal does not preclude the filing of a new, otherwise timely decertification petition based on a fresh, untainted showing of interest. Petitioner—an individual. Union involved—SEIU Healthcare Michigan. Chairman Pearce, and Members Johnson and Schiffer participated.
C Cases
Random Acquisitions, LLC (07-CA-052473) Grand Rapids, MI, May 19, 2014. No exceptions having been filed to the Administrative Law Judge’s Supplemental Decision in this compliance case, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to pay the backpay amounts owed to the discriminatees, as set forth in the Judge’s recommended Order. Charge filed by an individual. Administrative Law Judge Paul Bogas issued his decision on April 8, 2014.
AAA Residential Services of Montana, Inc. (19-CA-072863, et al.) Missoula, MT and Tacoma, WA, May 19, 2014. No exceptions having been filed to the Administrative Law Judge’s findings that the Respondent had engaged in certain unfair labor practices, the Board adopted the Judge’s findings and conclusions, and ordered the Respondent to take the remedial action set forth in the Judge’s recommended Order. Charges filed by SEIU Healthcare 775NW. Administrative Law Judge William L. Schmidt issued his decision on March 28, 2014.
National Emergency Medical Services Association (01-CB-110915) Quincy, MA, May 20, 2014. The Board denied the petition to revoke a subpoena duces tecum filed by American Medical Response of Massachusetts, Inc. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Petitioner failed to establish any other legal basis for revoking the subpoena. The Board noted that to the extent that the Petitioner provided some of the requested material, it is not required to produce that information again, provided that it describes which documents it has already provided, states whether those documents constitute all of the requested documents, and provides all of the information that was subpoenaed. Charge filed by an individual. Chairman Pearce, and Members Johnson and Schiffer participated.
American Medical Response of Massachusetts, Inc. (01-CA-118967) Natick, MA, May 20, 2014. The Board denied the Employer’s petition to revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matters under investigation and described with sufficient particularity the evidence sought. Further, the Board held that the Employer failed to establish any other legal basis for revoking the subpoena. Charge filed by United EMS Workers-American Federation of State, County and Municipal Employees, Local 4911. Chairman Pearce, and Members Johnson and Schiffer participated.
Taylor Farms Pacific, Inc./Slingshot Connections, LLC/Abel Mendoza, Inc. (32-CA-116854) Tracy, CA, May 24, 2014. The Board denied the Employer’s petition to partially revoke a subpoena duces tecum. The Board found that the subpoena sought information relevant to the matter under investigation and described with sufficient particularity the evidence sought, and that the Employer failed to establish any other legal basis for revoking the subpoena. Member Johnson found that, to the extent that the state law privacy interest is implicated by the Employer’s generalized privacy claim, that privacy interest would be generally cognizable in the context of objections to Board subpoenas. However, he noted that here, the Employer made no showing that mere contact information of employees sought as potential witnesses would be protected, and state law seems to the contrary. Member Schiffer noted that the Employer did not assert any state law privacy interest, and she found that its generalized privacy claim fails as a matter of law, and does not implicate any state law where, as here, no such claim was made. Charge filed by Teamsters, Local 601, International Brotherhood of Teamsters. Chairman Pearce, and Members Johnson and Schiffer participated.
H&M International Transportation, Inc. (22-CA-089596, et al.) Jersey City, NJ, May 23, 2014. The Board denied, on the merits, the General Counsel’s request for special permission to appeal from an administrative law judge’s ruling that the cell phone memory card of a witness must be produced at the hearing for reliability purposes. The Board agreed with the judge and the General Counsel that under Board law, the witness’s testimony was likely sufficient to authenticate the recording that the witness made with his phone for admissibility purposes. However, the Board found that the General Counsel failed to establish that the judge abused her discretion in ordering production of the memory card for reliability purposes. The Board additionally found that with respect to the legitimate privacy concerns raised by the General Counsel regarding the personal information on the witness’s cell phone memory card, production of the memory card should be subject to a protective order agreed upon by the parties, or formulated by the judge in the absence of such agreement, requiring that the memory card be given to a designated qualified expert in forensic analysis of electronic records, not in the direct employ of any party, for retrieval and review of the audio file at issue, and any associated metadata, in order to protect the confidentiality and integrity of the data. The Board further noted that there was no contention that the memory card contained evidence of protected activity. Charges filed by an individual. Members Hirozawa, Johnson, and Schiffer participated.
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Appellate Court Decisions
No Appeals Court decisions involving Board decisions to report.
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Administrative Law Judge Decisions
Hallmark-Phoenix 3, LLC (12-CA-090718 and 094037; JD(NY)-24-14) Cocoa, FL. Administrative Law Judge Joel P. Biblowitz issued his decision on May 19, 2014. Charges filed by Transport Workers Union of America, Local 525, AFL-CIO and International Alliance of Theatrical Stage Employees and Motion Picture Technicians, Artists and Allied Crafts of the United States, its Territories, and Canada, Local 780, AFL-CIO.
Hoot Winc, LLC and Ontario Wings, LLC d/b/a Hooters of Ontario Mills, Joint Employers (31-CA-104872, et al.; JD(ATL)-17-14) Ontario, CA. Administrative Law Judge William Nelson Cates issued his decision on May 19, 2014. Charges filed by individuals.
Pennsylvania State Corrections Officers Association (04-CA-037648, et al.; JD-24-14) Harrisburg, PA. Administrative Law Judge Robert A. Giannasi issued his decision on May 23, 2014. Charges filed by Business Agents Representing State Union Employees Association.