Today’s Labor Updates:

NLRB Draws a Line, Unlikes Employees’ Facebook Posts 

Court Declines to Enjoin Unions’ Rat Display; ‘Disruptive Activity’ Ban Only Covered Strikes

NLRB Doubles Down On D.R. Horton In Murphy Oil Fight 

 

NLRB Draws a Line, Unlikes Employees’ Facebook Posts 

By Brennan W. Bolt on October 30, 2014 Posted in NLRB Decisions, Social Media

Cases involving employee Facebook and other social media posts rarely end well for employers (see here, here, and here). However, on October 28, 2014, the National Labor Relations Board gave an employer a rare Facebook victory in Richmond District Neighborhood Center, 361 NLRB No. 74 (2014), finding that the employer lawfully rescinded rehire offers for two employees because their Facebook posts lost the protection of the National Labor Relations Act.

The employer operates a teen center at a high school and provides afterschool activities for students. Before each school year, the employer sends offer letters to those employees whom it wants to return. The employer had sent rehire letters to the two employees at issue, who engaged in a conversation on Facebook just prior to the start of the school year. Upon learning of the Facebook posts, the employer rescinded their rehire offers because the “statements give us great concern about you not following the directions of your managers in accordance with [the employer’s] program goals. … We have great concerns that your intentions and apparent refusal to work with management could endanger our youth participants.”

The General Counsel claimed that the employees’ Facebook posts were protected under the Act, and thus could not be the basis for discipline. However, the Board sided with the employer as it found that the employees’ conduct was “so egregious as to take it outside the protection of the Act, or of such a character as to render the employee[s] unfit for further service.” Specifically, the Board agreed that the employees’ Facebook posts advocated insubordination:

The employees referenced refusing to obtain permission as required by the Respondent’s policies before organizing youth activities (“ordering s—, having crazy events at the Beacon all the time. I don’t want to ask permission …”; “Let’s do some cool s—, and let them figure out the money”; “field trips all the time to wherever the f— we want!”), disregarding specific school-district rules (“play music loud”; “teach the kids how to graffiti up the walls …”); undermining leadership (“we’ll take advantage”; “I would hate to be the person takin your old job”); neglecting their duties (“I AINT GOBE  NEVER BE THERE”), and jeopardizing the future of the Beacon (“they start lossn kids i ain’t helpn”; “Let’s f— it up”).

(The full, unedited Facebook posts are set out in the decision).

The General Counsel argued that the Facebook posts, when viewed against the backdrop of the complaints articulated at a meeting earlier that year and one of the employee’s recent demotion, could not reasonably be understood as seriously proposing insubordinate conduct. The Board disagreed:

The magnitude and detail of insubordinate acts advocated in the posts reasonably gave the Respondent concern that [the employees] would act on their plans, a risk a reasonable employer would refuse to take. The Respondent was not obliged to wait for the employees to follow through on the misconduct they advocated.

While this decision is encouraging for employers, employers still have a very high burden for establishing that employee communications about their job on social media are not protected by the National Labor Relations Act. Accordingly, employers should always consult their labor counsel before issuing discipline in response to employee communications on social media.

Court Declines to Enjoin Unions’ Rat Display; ‘Disruptive Activity’ Ban Only Covered Strikes

Tuesday, October 28, 2014

from Daily Labor Report®

By Lawrence E. Dubé

Oct. 27 — An asbestos abatement contractor could not obtain an injunction to prohibit union agents from stationing an inflatable rat at its job sites despite a union pledge to refrain from “disruptive activity” for the duration of a collective bargaining agreement, a federal district court in New York ruled Oct. 27.

Judge Joseph F. Bianco of the U.S. District Court for the Eastern District of New York held the Norris-LaGuardia Act prevented him from granting Microtech Contracting Corp. a preliminary injunction against the Mason Tenders District Council of Greater New York and a Laborers’ International Union of North America local. Microtech alleged the unions were violating the local’s collective bargaining agreement in a protest over the company’s hiring of an individual, but Bianco said he had no jurisdiction to grant injunctive relief.

The court said the Norris-LaGuardia Act prohibited his intervention in the labor dispute, but he also found that the disruption rule cited by Microtech was intended only to prohibit strikes, stoppages, and picketing.

Employer Claims Contract Breach

According to the decision and court records, Microtech is a signatory to a multiemployer collective bargaining agreement with Hazardous Waste Laborers’ Local 78. The contract, which is in effect from December 2012 to July 2015, prohibits “strikes, walkouts, picketing, work stoppages, slowdowns, boycotts or other disruptive activity of a similar nature at a job site of, or otherwise directed at any Employer during the terms of this Agreement.”

Microtech filed a lawsuit in July alleging that Local 78 and the district council had disrupted its business by stationing a large inflatable rat at the company’s work sites.

Microtech alleged that the union protest followed its hiring of George Moncayo, an individual who had been a non-union contractor, and the union conceded during court proceedings that its protest activities are designed to force Microtech to discharge Moncayo.

Court Cites Norris-LaGuardia Limits

The court said that even if Microtech could show that its business was affected by the presence of the inflatable rat, there were several reasons he could not issue the requested injunction.

The Norris-LaGuardia Act, 29 U.S.C. § 101, provides “No court of the United States, as defined in this chapter, shall have jurisdiction to issue any restraining order or temporary or permanent injunction in a case involving or growing out of a labor dispute, except in a strict conformity with the provisions of this chapter.”

Bianco said the U.S. Supreme Court has permitted enjoining a strike over an issue subject to mandatory arbitration under a collective bargaining agreement, but hiring Moncayo was not such an issue. Because Local 78 could not protest Moncayo’s presence through a grievance, the court said, he could not issue an injunction prohibiting its protest.

Disruption Ban Linked to Strikes, Similar Acts

The court also said that Microtech was not likely to succeed on the merits of its claim that the union protests violated the collective bargaining agreement.

“[T]here is no allegation that the use of the rat has any impact on labor at the job site,” Judge Bianco said, and granting Microtech’s request for a preliminary injunction would “prohibit the union from engaging in any speech that is harmful to plaintiff’s business image.”

The “disruptive activity” ban in the union contract was qualified by the phrase “of a similar nature,” Bianco said. Both terms appeared in a no-strike clause, and the court said it was evident that any disruption prohibited by the clause had to be activity that had an effect similar to a strike or work stoppage. In Microtech’s case, the court said, “there is no allegation that the use of the rat has any impact on labor at the job site.”

Denying Microtech’s request for a preliminary injunction, Bianco said “To hold otherwise would be to prohibit the union from engaging in any speech that is harmful to plaintiff’s business image.”

Bisceglie & Associates PC represented Microtech. Cohen, Weiss and Simon LLP represented the unions. Haluk Savci also represented the district council. To contact the reporter on this story: Lawrence E. Dubé in Washington at ldube@bna.com

NLRB Doubles Down On D.R. Horton In Murphy Oil Fight 

Share us on: By Ben James

Law360, New York (October 29, 2014, 3:16 PM ET) — The National Labor Relations Board said Tuesday that gas station chain Murphy Oil USA Inc.’s arbitration agreements barring workers from pursuing class actions were unlawful, reaffirming its D.R. Horton ruling despite a dissent accusing the NLRB of failing to heed “clear instructions” from the U.S. Supreme Court.

Labor Board Chairman Mark Pearce, as well as NLRB members Kent Hirozawa and Nancy Schiffer, said that the gas station chain ran afoul of the National Labor Relations Act by requiring employees to resolve employment claims in individual arbitration and by seeking to enforce its agreements in court after ex-employee Sheila Hobson filed a Fair Labor Standards Act suit against Murphy in Alabama.

The company operates more than 1,000 gas stations in 21 states, according to the decision.

In ruling against Murphy, the majority embraced and reaffirmed rationale behind the January 2012 D.R. Horton ruling, noting that the controversial ruling had been panned by the Fifth Circuit and seen as unpersuasive by two others.

Tuesday’s ruling, which ran nearly 60 pages including dissents, tackled in detail the reasoning of those circuit courts as well as that of dissenting NLRB members Harry Johnson and Philip Miscimarra.

“In sum, we have carefully considered, and fully addressed, the views of both the Federal appellate courts that have rejected D.R. Horton and the views of our dissenting colleagues. We have no illusions that our decision today will be the last word on the subject, but we believe that D.R. Horton was correctly decided, and we adhere to it,” the majority said.

But Johnson said the NLRB was refusing to follow “clear instructions” from the nation’s highest court about the interpretation of the NLRA and compounding that mistake by rejecting clear instructions from the high court on how to interpret the Federal Arbitration Act, a law on which the labor board has “no special authority or expertise.”

Agencies ought to tread lightly when dealing with areas outside of their field as well as to pay heed when a majority of courts disagree with their take on laws beyond their expertise, but that’s not what happened here, according to Johnson.

“Instead, with this decision, the majority effectively ignores the opinions of nearly 40 Federal and State courts that, directly or indirectly, all recognize the flaws in the Board’s use of a strained, tautological reading of the National Labor Relations Act in order to both override the Federal Arbitration Act and ignore the commands of other federal statutes. Instead, the majority chooses to double down on a mistake that, by now, is blatantly apparent,” Johnson wrote.

The January 2012 D.R.  Horton decision, perhaps the most controversial ruling issued by the NLRB under President Barack Obama, said that arbitration agreements that are signed as a condition of employment and preclude workers from bringing joint, class or collective claims over working conditions are unlawful.

In December, the Fifth Circuit sided with Horton and rejected the NLRB’s conclusion that arbitration pacts barring class or collective claims violate federal labor law.

Tuesday’s decision involved an arbitration agreement that charging party Sheila Hobson had to sign when she applied for employment with Murphy in 2008. Hobson and three others filed a collective action against Murphy in 2010, and the company successfully moved to compel individual arbitration, said the decision.

Murphy urged the labor board to overrule D.R. Horton.

But the three-member NLRB majority said the agreement, as it existed in 2008 and as revised in 2012, violated the NLRA as interpreted in D.R. Horton. The employer’s efforts to enforce the agreements also ran afoul of the law, said the majority.

“We are pleased with the board’s decision affirming our clients’ statutory rights to collectively prosecute employment related claims,” Quinn Connor Weaver Davies & Ruoco LLP’s Richard Ruoco, an attorney for Hobson, said in an email.

Murphy is represented by Jeffrey Schwartz and Stephen Munger of Jackson Lewis PC.

Hobson is represented by Richard Ruoco and Glen Connor of Quinn Connor Weaver Davies & Ruoco LLP.

The NLRB general counsel is represented by Kerstin Meyers.

The case is Murphy Oil USA Inc., case number 10-CA-038804  at the National Labor Relations Board.