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Summary of NLRB Decisions for Week of April 6 – 10, 2015

 

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Can You Lawfully Prohibit Secret Recordings in the Workplace?

Summary of NLRB Decisions for Week of April 6 – 10, 2015

NLRB looking to undermine state Right to Work laws

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Can You Lawfully Prohibit Secret Recordings in the Workplace?

4/20/2015

By Jarad Lucan  Shipman & Goodwin LLP

It is a safe bet that most if not all of your employees own a mobile or smart phone.  It is also a safe bet that those phones have the capability of capturing pictures, taking video and recording conversations.  That said, it is almost a certainty that one or more of your employees will use his or her phone to secretly record conduct or conversations in the workplace.  When that happens, can you lawfully discipline the employee?  Many times the answer is “yes,” particularly in a school setting and when there are clear policies or practices in place prohibiting such conduct.  Other times, however, the answer is not clear.  Rather, the answer depends on why the employee was making the recording and what law applies if an employee challenges the discipline as being unlawful.

An employee may decide to secretly record conversations in the workplace in order to gather evidence in support of a discrimination claim (under Title VII, the Americans with Disabilities Act, or the Age Discrimination in Employment Act) being investigated by the Equal Employment Opportunity Commission (“EEOC”).  While some courts have determine that this conduct is protected activity and therefore the employee cannot be disciplined for engaging in the activity, the majority of courts have held otherwise.  These courts have determined that an employer may lawfully discipline or terminate an employee for secretly recording a conversation in the workplace that violates the employer’s policy, even if it was for the purpose of gathering evidence to support a discrimination claim.

An employee may also decide to secretly, or not, record conduct or conversations in the workplace to build support for a union organizing campaign, or in furtherance of collective action protected by federal labor law.  While the National Labor Relations Board (“NLRB”) has yet to issue a ruling on this subject, the NLRB’s general counsel and the administrative law judges (“ALJ”)  for the NLRB have been very active in this area over the past two years, particularly in Connecticut.  The cases that have been decided, however, do not necessarily offer consistent guidance.  To be sure, in one case involving Whole Foods Market, the ALJ upheld a challenge to the company’s policy prohibiting employees from recording conversations with a recording device (including a phone or any electronic device) unless prior approval was received from the store or facility leadership.  In finding that the policy was lawful, the ALJ stated that no cases had been cited, nor found, in which the NLRB has found that making recordings of conversations in the workplace is a protected right.

“Making recordings in the workplace is not a protected right, but is subject to an employer’s unquestioned right to make lawful rules regulating employee conduct in its workplace.”

Additionally, the ALJ noted that the rule was only limited to making electronic recordings of conversations.  An employee “may present his/her contemporaneous, verbatim, written record of his/her conversation with the other party, and his/her own testimony concerning employment-related matters.”

The second case involved the Professional Electrical Contractors of Connecticut.  In that case, the ALJ ruled that several employee handbook rules maintained by Professional Electrical Contractors of Connecticut Inc., including bans on “boisterous” activities and workplace photos, ran afoul of the National Labor Relations Act. The handbook contained a series of rules barring workers from taking pictures or making recordings at the workplace without management’s prior approval. The company’s policy covered still pictures, video and sound recordings both on and off the employer’s premises. It specifically stated: “Except as otherwise provided for in this policy, no associate may photograph, tape, or otherwise record any person, document, conversations, communication, or activity that in any way involves PEC or associates of PEC, any customers or any other individual with whom PEC is doing business or intending to do business in any capacity (for example, vendors, suppliers, consultants, attorneys or independent contractors). The authorized copying of documents in the ordinary course of business for the benefit of PEC is not prohibited by this policy. Use of company voicemail, and saving messages thereon, whether on company phones or company cell phones, is not prohibited by this policy.”

In issuing his ruling, the ALJ stated, “[t]here is, in my opinion, a legitimate conflict of principles regarding this set of rules which will require Board and Appellate Court clarification.”  Nevertheless, “in this case, however, I am going to come down on the side of the General Counsel and conclude that this set of rules, except to the extent that a customer explicitly prohibits photographing or videotaping on its premises, is too broad and is therefore a violation.”  This is certainly an area that you will want to pay attention to in the coming months.

While the NLRB does not have jurisdiction over public entities, such as public schools, colleges and universities, the NLRB has expanded its reach with respect to private sector educational institutions, including exercising jurisdiction over a private, nonprofit corporation that operates a public charter school, and certain faculty employed by religiously affiliated colleges and universities.  Further, public schools and universities should be aware of these rulings and the NLRB’s position on recordings in the workplace because Connecticut’s State Board of Labor Relations often looks to the federal law for guidance in interpreting and applying the state’s labor laws.

Finally, an employee may also decide to secretly record conduct or conversations in the workplace to gather evidence of workplace safety issues.  In this case, the administrative review board for the Occupational Safety and Health Administration, which investigates violations of numerous whistleblower laws protecting employees who report violations of workplace safety, has taken an expansive view of protected activity and determined that employees who record conduct or conversations at work in a good faith effort to gather evidence of employer violations have engaged in protected activity.  It would therefore be considered retaliation for an employer to discipline an employee for making such recordings.

It should be noted that Connecticut is a two-party consent state.  This means that it is unlawful under state law for an employee to record another individual without that individual’s knowledge of or consent to the recording.  That said, the federal laws discussed above would likely preempt the state law in this area, particularly where it is clear that the recordings made by the employee are protected activity, such as recording workplace safety issues.

As this area of law appears to be unsettled in many ways, we recommend that you review your current policies and practices in this area to ensure that any prohibitions are narrowly tailored and do not prohibit clear protected activity.

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Summary of NLRB Decisions for Week of April 6 – 10, 2015

The Summary of NLRB Decisions is provided for informational purposes only and is not intended to substitute for the opinions of the NLRB.  Inquiries should be directed to the Office of Public Affairs at Publicinfo@nlrb.gov (link sends e-mail) or 202‑273‑1991.

Summarized Board Decisions

International Brotherhood of Teamsters, Local 992 (UPS Ground Freight, Inc.)  (05-CB-132184; 362 NLRB No. 64)  Williamsport, MD, April 6, 2015.

The Board affirmed the Administrative Law Judge’s conclusion that the Respondent violated Section 8(b)(1)(A) when its Business Agent threatened or implied that the Charging Party could be brought up on internal union charges if he testified on behalf of his Employer in a February 20, 2014 arbitration proceeding.

Charge filed by an individual.  Administrative Law Judge Arthur J. Amchan issued his decision on December 11, 2014.  Chairman Pearce and Members Johnson and McFerran participated.

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Rogan Brothers Sanitation, Inc., and R&S Waste Services, LLC, as single employer, alter ego and/or successor  (02-CA-065928, et al.; 362 NLRB No. 61)  Yonkers, NY, April 8, 2015.

The Board panel unanimously adopted the judge’s findings  that Respondents Rogan Brothers Sanitation and R&S Waste Services were a single employer and violated 8(a)(3) by discharging three employees, and violated 8(a)(1) based on statements made to employees by agents of Respondents.  A panel majority found that after the single employer relationship ended, R&S Waste violated 8(a)(3) by refusing to hire one of the discharged employees. Member Johnson found it unnecessary to pass on this violation, in light of the single employer make-whole obligation of R&S for the discharge.

Agreeing with the judge that the collective bargaining agreement between Respondent Rogan Brothers and Teamsters Local 813 was an invalid and unenforceable “members-only” contract, the panel unanimously adopted the judge’s dismissal of allegations that Respondents violated 8(a)(5) by failing to apply the contract’s wage and benefit provisions to all unit employees, and by refusing to furnish Local 813 with relevant requested information.  In light of the dismissal of the 8(a)(5) allegations, the panel found it unnecessary to decide whether Respondents were alter egos.

Finally, the panel unanimously adopted the judge’s finding that after the single employer relationship ended, R&S Waste violated 8(a)(1), (2), and (3) by recognizing and entering into a collective-bargaining agreement containing a union-security clause with Respondent International Union of Journeymen and Allied Trades, Local 726.  There were no exceptions to the judge’s finding that Local 726 violated 8(b)(1)(A) and (2) by accepting recognition and agreeing to the contract.

Charges were filed by International Brotherhood of Teamsters, Local 813.  Administrative Law Judge Raymond P. Green issued his decision on June 17, 2013.  Chairman Pearce and Members Hirozawa and Johnson participated.

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No unpublished R case decisions.

C Cases

Hospital of Barstow, Inc. d/b/a Barstow Community Hospital  (31-CA-129445)  Barstow, CA, April 7, 2015.  The Board denied the petition of the Employer, Hospital of Barstow, to revoke a subpoena duces tecum.  The subpoena had been served on United States Nursing Corporation, a non-party.  The Board found that the Employer lacked standing to seek revocation of a subpoena served on a non-party without establishing that the requested information is protected by a privilege or a right, such as a right of privacy, and that the Employer had failed to make the requisite showing.  In addition, the Board found that, even assuming that the Employer had standing to file the petition to revoke, the subpoena sought information relevant to 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.  The Board also found no merit in the Employer’s argument that the Regional Director for Region 31 lacked the authority to investigate the charge because her appointment was invalid.  The Charge was filed by California Nurses Association/National Nurses Organizing Committee. Chairman Pearce and Members Johnson and McFerran participated.

Kellogg Brown & Root, LLC  (31-CA-140948)  Mountain Pass, CA, April 10, 2015.  Order denying the petition filed by Kellogg Brown & Root, LLC to revoke 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.  Further, the Board held that the employer failed to establish any other legal basis for revoking the subpoena.  Member Johnson noted that, although he would ordinarily find that Section 10(b) is a consideration in determining the relevance of information, this is an arbitration agreement case where the Board has interpreted Section 10(b) to find a violation arising from the ongoing maintenance of a violative arbitration agreement, and the employer put the supervisory status of the Charging Party at issue, which would call for an examination of relevant documents from the time that he was on the employer’s payroll.  Charge filed by an individual.  Chairman Pearce and Members Johnson and McFerran participated.

G.M.H. Associates of America, Inc.  (22-CA-141685)  Trenton, NJ, April 10, 2015.  The Board denied the Employer’s petition to revoke the subpoena duces tecum, finding that the subpoena seeks information relevant to the matter under investigation and describes with sufficient particularity the evidence sought, as required by Section 11(1) of the Act and Section 102.31(b) of the Board’s Rules and Regulations.  The Board further found that the Employer failed to establish any other legal basis for revoking the subpoena.

Charge filed by International Union of Operating Engineers, Local 542.  Chairman Pearce and Members Johnson and McFerran participated.

United Food & Commercial Workers Union Local 135, United Food & Commercial Workers International Union, AFL-CIO, CLC (Ralphs Grocery Company)  (21-CB-112391)  Oceanside, CA, April 10, 2015.  With no exceptions pending before the Board after the Respondent withdrew the exceptions it had previously filed to the February 19, 2015 decision of Administrative Law Judge Amita Baman Tracy finding 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 action set forth in the Judge’s recommended Order.  Charge filed by an individual.

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Appellate Court Decisions

No Appellate Court Decisions involving Board Decisions to report.

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Administrative Law Judge Decisions

SB Tolleson Lodging, LLC d/b/a Best Western Tolleson-Phoenix Hotel  (28-CA-131049; JD(SF)-14-15)  Phoenix, AZ.  Administrative Law Judge Amita Baman Tracy issued her decision on April 7, 2015.  Charge filed by an individual.

Adriana’s Insurance Services, Inc.; Just Auto Insurance Services, Inc.; Veronica’s Auto Insurance Services, Inc.  (31-CA-113416, et al.; JD(SF)-15-15)  Los Angeles, CA, April 7, 205.  Administrative Law Judge Mary Miller Cracraft issued her decision on April 7, 2015.  Charges filed by individuals.

Valley Health Systems LLC d/b/a Spring Valley Hospital Medical Center and Centennial Hills Hospital Medical Center and Desert Springs Hospital Medical Center and Valley Hospital Medical Center and Summerlin Hospital Medical Center LLC d/b/a Summerlin Hospital Medical Center (28-CA-123611 and 28-CA-127147; JD(SF)-08-15) Las Vegas, NV, April 7, 2015.  Errata to the March 18, 2015 decision of Administrative Law Judge Lisa D. Thompson.  Errata   Amended decision.

Green Fleet Systems, LLC  (21-CA-100003, et al.; JD(SF)-16-15)  Carson, CA.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 9, 2015.  Charges filed by International Brotherhood of Teamsters, Port Division.

International Union of Operating Engineers Local 18 (Donley’s Inc.)  (08-CD-081840, et al.; JD-22-15)  Cleveland, OH.  Administrative Law Judge Mark Carissimi issued his decision on April 9, 2015.  Charges filed by various employers.

Neises Construction Corp.  (13-CA-135991, et al.; JD-23-15)  Crown Point, IN.  Administrative Law Judge Arthur J. Amchan issued his decision on April 10, 2015.  Charges filed by the Indiana/Kentucky/Ohio Regional council of Carpenter.

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NLRB looking to undermine state Right to Work laws

On April 16, 2015, the National Labor Relations Board (NLRB) quietly issued a request for amicus briefing in a case it is currently waiting to decide on appeal. The case involves the question of whether a union can charge dues to employees in a “right to work” state who choose not to join the union. In recent years, Michigan and Wisconsin, two formally pro-union states, have passed Right to Work laws under Republican governors (bringing the total to 25 states), and the trend threatens to severely weaken unions across the country.

The legal question arises out of the conflict between the union’s duty of fair representation and the state right to work laws. In a right to work state, an employee can choose not to join a union, but the union is nonetheless bound to represent the employee under the National Labor Relations Act. Unions claim it is unfair for employees to refuse to pay dues, then expect the union to represent them for free in an arbitration, for example, if they are terminated.

A link to the NLRB’s request for briefing on this issue can be found here.  Obviously, given the leanings of the current NLRB, it would appear that a new rule is coming, which would allow unions to require some form of payment in exchange for representation.  The big question is whether that rule will mandate full-blown dues (which would defeat the right to work law altogether) or some sort of “pay as you go” fee in exchange for union representation in grievances or arbitration.  If the NLRB chooses to change the decades old federal precedent in this area, it will certainly have a huge fight on its hands in the form of an appeal to federal court.

 

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