Today’s Labor Updates:

General Counsel responds to labor practitioners’ questions.

Summary of NLRB Decisions for Week of May 11 – 15, 2015

Expanded Whistleblower Protections Impact Confidentiality Policies and Agreements

General Counsel responds to labor practitioners’ questions.
Blog-Vorys on Labor

USA May 14 2015

Earlier this year, the NLRB’s GC, who is responsible for enforcing the NLRA, continued his annual practice of attending the Mid-Winter Meeting of the Practice and Procedure Committee of the ABA Labor and Employment Law Section.  The GC answered questions the committee had collected from labor law practitioners around the country.

A few weeks ago, as has become the practice, the GC published a memorandum (pdf) summarizing the questions that were posed to him and the answers he provided.  As in years past, the memorandum covers a wide range of topics that are too broad to cover effectively in this post.

Nonetheless, as I have done in prior years, I have listed some of the more noteworthy topics the memorandum covers below.  The parenthetical references are to the page(s) in the memorandum on which the summarized discussion appears:

• 35.2% of all unfair labor practice charges with the regional offices of the NLRB are found meritorious. An overwhelming majority of those are then settled. Of those that are fully litigated, the NLRB wins in approximately 85% of the cases (2);
• The NLRB regularly includes in its settlement agreements language that produces adverse consequences for employers in the event of a default. The GC indicated that regional offices have discretion to limit that language in certain circumstances to the location where the violation occurred and to limit the duration of the language to a six-month period (6);
• The GC discusses in detail the new standards the NLRB has adopted for both pre-arbitration and post-arbitration deferral (8-10);
• GC provides an interesting update on Noel Canning. Of the hundreds of cases invalidated by the Supreme Court’s decision, only 30 have not been revisited by the NLRB and in all the cases that have been decided, the result only changed in one of them (14);
• In representation cases, the union’s win rate for elections held in fiscal year 2014 was 68% in union election cases and 33% in union decertification cases (26);
• Of particular significance given the recently effective quickie or “ambush” election rules, the GC reported that the medium number of days from filing a petition to having an election was 38 and that 95.7% of all elections were conducted within 56 days of the petition filing (26);
• The GC also provided some Q&A on the new election rules, covering a number of different issues (28).

Labor professionals with a particular interest in the foregoing and similar issues should review the GC’s memorandum in detail.

Summary of NLRB Decisions for Week of May 11 – 15, 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

DirecTv U.S. DirecTv Holdings, LLC (21-CA-039546; 362 NLRB No. 48) Riverside, CA, May 14, 2015.  Errata to March 31, 2015 Decision and Order.  Errata   Amended Decision

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Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

Transdev/Veolia Transportation Services, Inc.  (05-RD-141298)  Hyattsville, MD, May 14, 2015.  No exceptions having been filed to the Hearing Officer’s overruling of the Petitioner’s objections to an election held January 13 and 14, 2015, the Board adopted the Hearing Officer’s recommendations and certified the Intervenor, Amalgamated Transit Local 1764, as the exclusive collective-bargaining representative of the employees in the appropriate unit.  Petitioner—an individual.

NTN Bower Corporation  (10-RD-105644)  Hamilton, AL, May 14, 2015.  No exceptions having been filed to the Hearing Officer’s recommendations to sustain certain objections to an election held February 20, 2015, the Board adopted the Hearing Officer’s recommendations and ordered the case remanded to the Region for further proceedings consistent with the Hearing Officer’s Report, including the holding of a new election.  Petitioner—an individual.  Union involved—International Union, United Automobile, Aerospace & Agricultural Implement Workers of America, AFL-CIO.

Community Mercy Health Partners d/b/a Mercy McAuley Center  (09-RD-145475)  Urbana, OH, May 15, 2015.  Order denying the Employer’s Request for Review as not raising substantial issues as to whether the Regional Director properly held the petition in abeyance pending resolution of unfair labor practice charges alleging a refusal by the Employer to provide information to the Union, as well as other unfair labor practice charges under investigation.  Petitioner—an individual.  Union—Service Employees International Union (District 1199, WV/KY/OH).  Chairman Pearce and Members Miscimarra and Hirozawa participated.

C Cases

Cooling For Less, Inc.  (28-CA-105006)  Phoenix, AZ, May 13, 2015.  No exceptions having been filed to the March 19, 2015 decision of Administrative Law Judge Lisa D. Thompson granting the General Counsel’s Motion for Default Judgment, the Board adopted the judge’s findings and ordered the Respondent to pay the calculated net backpay owed to the discriminatee.  Charge filed by an individual.

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Appellate Court Decisions

Ozburn-Hessey Logistics, LLC, Board Case No. 26-CA-023497 (reported at 357 NLRB No. 136) (D.C. Cir. decided May 15, 2015)

In a unpublished per curiam opinion, the court enforced the Board’s order and upheld its findings that this provider of transportation, warehousing, and logistics services in Memphis, Tennessee, committed numerous unfair labor practices in response to its employees’ union organizing activities in June to October 2009.

In December 2011, the Board (Chairman Pearce and Members Becker and Hayes), in agreement with the administrative law judge, found that the employer violated Section 8(3) and (1) by warning and discharging one union activist, warning and suspending another, and discharging a third.  The Board also found that the employer violated Section 8(a)(1) in numerous respects, including by threatening employees with loss of benefits if they unionized, interrogating employees, threatening employees with job loss if they participated in a strike, confiscating prounion literature from break rooms, contacting the police to have union agents removed from public property, and interfering with employees’ right to distribute literature to their fellow employees in nonworking areas on nonworking time.

The court held that substantial evidence supported the Board’s unfair-labor-practice findings and rejected the employer’s contentions, which were largely based on challenges to the judge’s credibility resolutions that were adopted by the Board.  With respect to the 8(a)(3) violations, the court agreed with the Board that, under the applicable Wright Line test, the General Counsel had made a prima facie case and that the employer failed to show that it would have taken the same actions in the absence of the protected activity.  In that regard, the court noted that the employer relied on discredited testimony and had tellingly failed to conduct investigations before taking disciplinary action against the three employees who were key union organizers in the early days of the campaign.

The Court’s opinion is here.

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Administrative Law Judge Decisions

Macy’s, Inc.  (01-CA-123640; JD(NY)-21-15)  Saugus, MA.  Administrative Law Judge Joel P. Biblowitz issued his decision on May 12, 2015.  Charge filed by United Food and Commercial Workers Union, Local 1445.

Crozer Chester Medical Center  (04-CA-130177, et al.; JD-07-15)  Upland, PA.  Administrative Law Judge Robert A. Ginannasi issued his decision on May 13, 2015.  Charges filed by Pennsylvania Association of Staff Nurses and Allied Professionals (PASNAP).

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Expanded Whistleblower Protections Impact Confidentiality Policies and Agreements

5/20/2015 by Karen Buesing  Akerman LLP – HR Defense

All employers should review their confidentiality policies and agreements to ensure adequate protections for whistleblowers in the wake of recent actions by both the Securities and Exchange Commission (“SEC”) and the National Labor Relations Board (“NLRB”).

Last month, the SEC pursued its first enforcement action against KBR, Inc., which had required employees who were interviewed as part of internal investigations to sign confidentiality agreements prohibiting them from discussing the interview without the authorization of the company’s law department. Companies often seek to preclude employees from discussing internal investigations to protect the integrity of the investigation and to ensure employees do not seek to align stories or cover up evidence.

However, in the administrative proceeding filed against KBR, the SEC asserted such provisions violated the law by discouraging individuals from reporting potential securities violations. To resolve the matter, KBR consented to the entry of an order fining KBR $130,000 and requiring it to amend its standard confidentiality agreement to make clear that nothing in the agreement prohibited employees from reporting possible violations of federal laws or regulations to governmental agencies or investigators without prior authorization. In addition, KBR was required to send a copy of the SEC Order to employees who had signed the prior confidentiality agreements since 2011 and to expressly notify them that they did not need to notify the company’s counsel before communicating with government agencies. It is notable that the SEC imposed these measures, even though it acknowledged it was not aware of any instance in which a KBR employee was dissuaded from coming forward to report potential violations or of any efforts by KBR to enforce the confidentiality provisions.

The KBR action followed on the heels of media reports regarding the SEC sending out requests to dozens of public companies earlier this spring seeking copies of non-disclosure, separation and other agreements and its March announcement that confidentiality agreements were fair game for the agency.

In April, the U.S. Chamber of Commerce wrote a public letter expressing “significant concern” regarding the KBR enforcement action, noting that it is the “result of a highly subjective” application of the whistleblower rules and amounts to the SEC undertaking rulemaking through enforcement instead of a notice and comment process. The letter argues that while SEC Rule 21F-17 prohibits a company from threatening to enforce or using a confidentiality agreement to prevent an employee from communicating with SEC staff without company consent, the rule does not prevent companies from having confidentiality agreements, which are a routine part of doing business. The Chamber has urged the SEC to provide more formal guidance to the business community.

The SEC’s increased focus on confidentiality provisions mirrors that of the NLRB. In March, the General Counsel of the NLRB issued a 30-page memo taking issue with many standard employer policies and handbook provisions which the agency contends are unlawful, including standard confidentiality provisions seeking to protect various kinds of information, including customer, employee, confidential, and proprietary information. See our HR Defense blog on the General Counsel Memo here. The NLRB believes such provisions could be understood by employees to bar them from engaging in protected concerted activity concerning their wages and terms and other conditions of employment.

Although no court has yet to uphold either SEC’s or the NLRB’s position regarding confidentiality provisions, employers may want to review and revise their employee handbooks and documents, if necessary, to bring them into compliance with these agency positions.