Today’s Labor Updates:
Policies on employee appearance and social media use declared unlawful
Summary of NLRB Decisions for Week of May 18 – 22, 2015
Policies on employee appearance and social media use declared unlawful
May 28, 2015
By ASHLEY MANFULL and NELSON CARY
Recently, the National Labor Relations Board in a three-member panel consisting of Chairman Mark Gaston Pearce (D) and members Kent Y. Hirozawa (D) and Harry I Johnson III (R), ruled on more employee handbook provisions. These rulings covered an expanse of topics, including social media, employee conduct, and dress and grooming.
In Boch Imports Inc., the NLRB determined that the employer, a car dealer, violated the National Labor Relations Act by maintaining a social media policy that (1) required employees to identify themselves when posting online comments about the employer, its business, or any policy issue; and (2) prohibited employee use of the employer’s logos in any manner. A dress code/personal hygiene policy that prohibited employees who have contact with the public from wearing pins, insignias, and other message-bearing clothing also was deemed unlawful.
Social media policy
The NLRB reasoned that requiring employees to identify themselves when posting comments about the employer could be reasonably construed to cover comments about the employees’ terms and conditions of employment. Similarly, prohibiting employees from using the employer’s logos “in any manner” would unreasonably include usage for the purpose of engaging in protected employee communications. Therefore, the policies infringed on employees’ Section 7 rights.
The NLRB also adopted, without analysis, an administrative law judge’s findings that the following portions of the employer’s social media policy were overly broad and impeded employees’ Section 7 rights:
• Prohibiting employees from referring to the employer in online postings that would negatively impact the employer’s reputation or brand
• Prohibiting employees from engaging in conduct that “has or has the potential to have a negative effect” on the employer, even if the conduct occurs off the property and off the clock
• Prohibiting employees from posting videos or photos that are recorded in the workplace
• Requiring employees to contact the employer’s vice president of operations before making a statement to the media
• Requiring employees who choose to post online to do so “respectfully”
Dress code and personal hygiene
The NLRB also held that the employer did not meet its burden of establishing special circumstances that would justify any portion of its rule prohibiting employee pins, insignia or other message-bearing clothing.
In order to maintain such a restriction, the employer must prove that wearing pins, insignia or other message-bearing clothing would jeopardize employee safety, damage machinery or products, exacerbate employee dissension, or unreasonably interfere with a public image that the employer has established through a formal business plan.
The NLRB rejected the employer’s argument that its policy was necessary to protect the employer’s public image because the employer failed to prove that it maintained a strict uniform policy intended to create a specific and unique environment. The NLRB also found the employer advanced insufficient evidence of safety and property damage concerns to justify the employer’s restriction against pins. Further, even if such concerns were valid, the policy was not narrowly tailored to apply only to those individuals who may be impacted by the safety or property damage concerns.
On this issue, Johnson dissented. He would have upheld the employer’s restriction on pins, based on reasonable concerns that the cars the dealer sold were expensive and pins could scratch the cars or fall into a car’s mechanical workings. Moreover, the employer proved that it experienced significant annual loss from property damage generally, even though it couldn’t tie that loss to employee pins specifically.
Summary of NLRB Decisions for Week of May 18 – 22, 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
FedEx Freight, Inc. (22-CA-146653; 362 NLRB No. 91) Monmouth, NJ, May 19, 2015.
The Board granted the General Counsel’s motion for summary judgment in this 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. In addition, the Board rejected the Respondent’s request that the Board “clarify” the record in the underlying representation case by admitting into evidence a report purportedly supporting the Respondent’s position that the appropriate unit must include the Respondent’s dockworkers. The Board denied the request, which it treated as a motion to reopen the representation proceeding record, finding that the proffered information did not constitute newly discovered and previously unavailable evidence, and that it would not, if adduced, establish special circumstances.
Charge filed by International Brotherhood of Teamsters, Local 701. Chairman Pearce and Members Johnson and McFerran participated.
***
The Columbus Show Case Company d/b/a CSC Worldwide and CSC Specialty Retail Group, LLC (09-CA-112725, et al.; 362 NLRB No. 90) Columbus, OH, May 20, 2015.
The Board granted, in part, the General Counsel’s Motion for Default Judgment based on the Respondents’ failure to file a timely and sufficient answer to the second amended complaint and compliance specification. The Board found that the Respondents, CSC Worldwide and CSC Specialty Retail Group, as a single employer, violated Section 8(a)(5) and (1) by dealing directly with unit employees and by failing to pay certain arbitration fees, failing to remit certain pension fund contributions, and failing to pay unit employees for certain unused and accrued leave. Concerning the allegation that the Respondents violated Section 8(a)(5) and (1) by using managers and supervisors to perform unit work, the Board found that the Respondents raised a genuine issue of material fact. The Board denied the General Counsel’s motion with respect to that allegation and severed and remanded that portion of the proceeding to the Region. The Board ordered the Respondents to pay the arbitration fees they owed, remit pension fund contributions, and pay unit employees for unused vacation hours, unused sick leave, and accrued vacation hours.
Charges filed by Sheet Metal Workers International Association, Local Union No. 24, AFL-CIO; Council of Industrial Workers, United Brotherhood of Carpenters and Joiners of America, Local 2077; International Union of Painters and Allied Trades, District Council 6, Local Union No. 1275, AFL-CIO, CLC; Glaziers, Architectural Metal and Glass Workers, Local Union No. 372; and International Brotherhood of Electrical Workers, Local Union 683, AFL-CIO. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Ohio Edison Company, a wholly owned subsidiary of First Energy Corp. (08-CA-099595 and 06-CA-092312; 362 NLRB No. 88) Akron, OH and Shippingport, PA, May 21, 2015.
Regarding Case 06-CA-092312, a Board panel majority consisting of Chairman Pearce and Member Hirozawa affirmed the Administrative Law Judge’s finding that the Respondent violated Section 8(a)(5) and (1) by unilaterally changing the length of time employees must serve to be eligible for awards, from every 5 to every 10 years, under its Employee Service Recognition Policy (ESRP). The majority found that, when notified of the change, the Union president’s statements opposing the change, threatening to file an unfair labor practice charge, and expressing a desire to travel to the Respondent’s headquarters to meet with the decisionmaker, constituted a request to bargain. The majority further found that the Union’s subsequent filing of an unfair labor practice charge, explicitly alleging the Respondent’s failure to bargain over the change to the ESRP, clarified and provided further context to the Union president’s comments. Dissenting, Member Miscimarra would not find that the Union president’s statements constituted a request to bargain, but only a mere protest. Further, in his view, the majority inappropriately used the Union’s subsequent filing of the unfair labor practice charge to “convert” its protest into a request to bargain. Accordingly, Member Miscimarra would reverse the Administrative Law Judge and dismiss the complaint.
In the absence of exceptions, the Board panel unanimously adopted the Administrative Law Judge’s dismissal of the Section 8(a)(5) and (1) complaint in Case 08-CA-099595.
Administrative Law Judge Mark Carissimi issued his decision on January 17, 2014. Charges filed by the International Brotherhood of Electrical Workers, Local Union No. 1194, AFL-CIO, CLC and International Brotherhood of Electrical Workers, Local Union No. 272, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra and Hirozawa participated.
***
Unpublished Board Decisions in Representation and Unfair Labor Practice Cases
R Cases
Miller & Anderson, Inc. (05-RC-079249) Franklin County, PA, May 18, 2015. Order granting Petitioner’s Request for Review of the Regional Director’s administrative dismissal of the petition on the ground that it raises substantial issues warranting review with respect to the applicability of Oakwood Care Center, 343 NLRB 659 (2004). The Board also stated that it intends to issue a subsequent notice establishing a schedule for the filing of briefs on review and inviting amicus briefs. Petitioner— Sheet Metal Workers International Association, Local Union No. 19, AFL-CIO. Chairman Pearce, and Members Hirozawa and McFerran participated.
Point Park University (06-RC-012276) Pittsburgh, PA, May 21, 2015. The issue in this case is whether the Employer’s fulltime faculty members are managerial employees, whose rights to engage in collective bargaining are not protected by the Act. The Board denied the Employer’s motion for reconsideration of its February 25, 2015 Order remanding the proceeding to the Regional Director for further appropriate action consistent with its recent decision in Pacific Lutheran University, 361 NLRB No. 157 (2014), which specifically addressed the standard to be applied in making such determinations. Petition filed by Newspaper Guild of Pittsburgh/Communications Workers of America, Local 38061, AFL-CIO, CLC. Chairman Pearce and Members Miscimarra, Hirozawa, Johnson, and McFerran participated.
Pierce Refrigeration, Inc. (01-RC-146295) West Bridgewater, MA, May 21, 2015. No exceptions having been filed to the Regional Director’s overruling of objections to an election held March 25, 2015, the Board adopted the Regional Director’s findings and recommendations, and certified that the Petitioner, United Association of Plumbers, Pipefitters, Sprinkler Fitters, and HVAC Technicians Local Union 537, is the exclusive collective-bargaining representative of the unit employees.
Mercy Memorial Health Services, Inc. d/b/a Pine Ridge: a Rehabilitation and Nursing Center (07-RD-143870) Stevensville, MI, May 22, 2015. No exceptions having been filed to the hearing officer’s overruling of the Union’s objections to a decertification election held February 3, 2015, the Board adopted the hearing officer’s findings and recommendations, and certified that a majority of the valid ballots had not been cast for SEIU Healthcare Michigan, Service Employees International Union, CTW and that therefore it is not the exclusive collective-bargaining representative of the unit employees. Petitioner – an individual.
Sensient Natural Ingredients LLC (32-RC-145527) Turlock, CA, May 22, 2015. No exceptions having been filed to the Regional Director’s Report on objections and determinative challenged ballots in an election held March 13, 2015, the Board adopted the Regional Director’s findings and recommendations, and remanded the case to the Regional Director for further appropriate action consistent with his Report. Petitioner – International Brotherhood of Teamsters, Graphic Communications Conference, Local 388M.
C Cases
Sutter Central Valley Hospitals, d/b/a Memorial Medical Center (32-CA-098873 and 32-RC-128843) Modesto, CA, May 19, 2015. No exceptions having been filed to the March 31, 2015 decision of Administrative Law Judge Ariel L. Sotolongo finding that the Respondent failed to comply with the Board’s previous order and remedy, the Board adopted the judge’s findings and ordered that that Respondent take the action set forth in the recommended order and also directed the Regional Director to direct a second election. Charge and Petition filed by California Nurses Association/National Nurses United (CAN/NNU).
SB Tolleson Lodging, LLC d/b/a Best Western Tolleson-Phoenix Hotel (28-CA-131049) Tolleson, AZ, May 19, 2015. No exceptions having been filed to the April 7, 2015 decision of Administrative Law Judge Amita B. Tracy finding that the Respondent had not engaged in certain unfair labor practices, the Board adopted the judge’s findings and conclusions, and dismissed the complaint. Charge filed by an individual.
Star West Satellite, Inc. (19-CA-133107 and 19-CA-135489) Nampa, ID, May 21, 2015. Order denying the Respondent’s motion for partial summary judgment. Charge filed by International Brotherhood of Electrical Workers Local 206, affiliated with International Brotherhood of Electrical Workers, AFL-CIO. Chairman Pearce and Members Miscimarra and McFerran participated.
***
Appellate Court Decisions
No Appellate Court Decisions involving Board Decisions to report.
***
Administrative Law Judge Decisions
Employers Resource (31-CA-097189; JD(SF)-22-15) San Marcos and Tustin, CA. Administrative Law Judge Jeffrey D. Wedekind issued his decision on May 18, 2015. Charge filed by an individual.
Temp-Air, Inc. (18-CA-128364; JD-27-15) Burnsville, MN. Administrative Law Judge Melissa M. Olivero issued her decision on May 19, 2015. Charge filed by Teamsters Local 970.
High Flying Foods (21-CA-135596; JD-29-15) San Diego, CA. Administrative Law Judge Charles J. Muhl issued his decision on May 19, 2015. Charge filed by UNITE HERE! Local 30.
The Cement League (03-CA-126938; JD(NY)-23-15) Cambridge, MA. Administrative Law Judge Raymond P. Green issued his decision on May 21, 2015. Charge filed by Northeast Regional Council of Carpenters.
Staffco of Brooklyn, LLC (29-CA-134148; JD(NY)-22-15) Brooklyn, NY. Administrative Law Judge Kenneth W. Chu issued his decision on May 21, 2015. Charge filed by New York State Nurses Association.