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Today’s Labor Updates, May 7, 2017

NLRB Won’t Create Rule Extending To Nonunion Workers Right To Have Union Rep At Disciplinary Interview.

by Jackson Lewis P.C.

The National Labor Relations Board has decided not to exercise its discretionary authority to engage in rulemaking at this time to reverse the Board’s decision in IBM Corp., 341 NLRB 1288 (2004), and extend Weingarten rights to nonunion employees. In Weingarten, the Supreme Court held that an employee has a right to re­quest the attendance of a union representative in any in­terview that he or she “reasonably fears may result in his discipline.”

The issue was before the Board as a result of a request by NLRB attorney Charles S. Strickler, Jr.

The Board’s action does not foreclose the possibility that it will reverse IBM Corp. if an appropriate case is presented to it.

OSHA Rescinds Fairfax Memo – OSHA No Longer Required to Permit Union Reps to Represent Non-Union Employees in Walkaround Inspections.

Article By:Adam Roseman

On April 25, 2017, the Occupational Safety and Health Administration (OSHA) rescinded a Feb. 21, 2013 letter from former Deputy Assistant Secretary Richard E. Fairfax to Mr. Steve Sallman (Fairfax Memo) that permitted workers at a worksite without a collective bargaining agreement to designate a person affiliated with a union or community organization to act on their behalf as a representative during an OSHA walkaround inspection.

Employers have viewed the Fairfax Memo as a way for unions to get access to employees that they hope to unionize. With the rescission of this memo, employers are no longer required to permit union officials to represent workers at a worksite without a collective bargaining agreement during an OSHA walkaround inspection.


The Occupational Safety and Health Act (OSH Act) authorizes participation in a walkaround portion of an OSHA inspection by a “representative authorized by the [the employer’s] employees.”1 In addition, the OSH Act’s regulations state:

The representative(s) authorized by employees shall be an employee(s) of the employer. However, if in the judgment of the [CSHO], good cause has been shown why accompaniment by a third party who is not an employee of the employer (such as an industrial hygienist or a safety engineer) is reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace such third party may accompany the [CSHO] during the inspection.2 

On Feb. 21, 2013, in response to a union official’s inquiry, then Deputy Assistant Secretary Richard E. Fairfax concluded in a letter of interpretation (the Fairfax Memo) that the OSH Act permits an employee without a collective bargaining agreement to designate a person affiliated with a union to act on his or her behalf as a walkaround representative.3  Consistent with section 1903.8(c), OSHA concluded that “representatives are ‘reasonably necessary’ when they will make a positive contribution to a thorough and effective inspection.”4 The Fairfax Memo further stated that “there are numerous ways that an employee representative who is neither an employee of the employer being inspected nor a collective bargaining agent could make an important contribution to a thorough and effective inspection. This could be because of the representative’s experience and skill, for example because of experience evaluating similar working conditions in a different plant.”5

On Sept. 8, 2016, the National Federation of Independent Business (NFIB) sued OSHA, alleging that the Fairfax Memo was, among other things, illegal because it exceeded OSHA’s rule making authority. After the defendants filed a motion to dismiss, the Northern District of Texas found that the Fairfax Memo did not exceed OSHA’s authority under the OSH Act because the Fairfax Memo merely broadly interpreted a provision of the OSH Act. The court also found, however, that the NFIB had sufficiently alleged an injury. The Fairfax Memo, the court reasoned, left “NFIB members to imminent threat that a compliance officer will arrive at one of their workspaces with an ex parte warrant to conduct a walkaround inspection, accompanied by a non-employee representative.”

On April 25, 2017, OSHA issued a memorandum notifying all of its Regional Administrators that OSHA had rescinded the Fairfax Memo. In the memorandum, OSHA stated that due to the OSH Act’s regulations, specifically 29 C.F.R. 1903.8(c), the Fairfax Memo was no longer necessary. Specifically, OSHA explained that the regulation permits, where good cause is shown and where “reasonably necessary to the conduct of an effective and thorough physical inspection of the workplace,” a CSHO may allow a non-employee third party to accompany the CSHO during an OSHA inspection.

Two days later, the NFIB moved to dismiss the case regarding the Fairfax Memo.


OSHA’s rescission of the Fairfax Memo follows the recent trend of the new administration’s Department of Labor rolling back what some may view as pro-employee policies that OSHA implemented under President Obama’s administration. OSHA’s rescission of the Fairfax Memo ends the requirement that employers must allow employees without a collective bargaining agreement to designate a person affiliated with a union or community organization to act on their behalf as a walkaround representative during an OSHA inspection. Now, employees may only designate an employee(s) of an employer (or an industrial hygienist or safety engineer where “reasonably necessary” to conduct an OSHA inspection) as their authorized representative during an OSHA walkaround inspection.

Employers should inform managers, supervisors, human resources, and safety personnel that OSHA rescinded the Fairfax Memo and that OSHA no longer permits non-union employees to designate a person affiliated with a union as their authorized representatives during an OSHA walkaround inspection.

NLRB win over vulgar Facebook post reveals board’s expanding reach

Author By Kathryn Moody @KatMMoody

May 5, 2017

Shocked headlines lit up the Internet recently when the 2nd U.S. Circuit Court sided with the National Labor Relations Board and its defense of an employee that called his manager a “NASTY MOTHER F****R” on Facebook — but HR managers have likely already seen the writing on the wall long before this.

The NLRB’s recent win in NLRB v. Piers Sixty LLC reflects the expanding definition of  ‘protected speech’ as the reach of social media extends further into the workplace.

Within that rather filthy Facebook post, the worker (fired after making said post) also discussed an upcoming union election. According to the NLRB, that was enough to make it “protected speech.” The courts have so far deferred to the NLRB on this matter.

Despite employee behavior that even the 2nd circuit declared the “outer-bounds” of protected comments, the employer here made mistakes that likely cost them the case. As Peter Siegel, a shareholder in Greenspoon Marder’s Labor and Employment Law practice told HR Dive, this case was “very different” from a personal attack on a manager and a manager’s family.

Context is everything in employment law — especially as regulatory bodies like the NLRB continue to expand their definitions of key employment concepts. So far, the tendrils of “protected speech” have expanded far, and are reaching farther.

But that, too, may soon change under the current administration. Confused? Read on.

The NLRB’s expanding reach on “protected speech”

When social media was still the Wild West, employers had the latitude to decide what a post meant, and largely could terminate without repercussion. But those days are over, Siegel said.

“[This case] really is a perfect example of where the employee protections kick in,” he added. He considers the result of the case “not really surprising” when the Facebook post is placed in the context of recent NLRB decisions regarding social media, which have almost all leaned into protecting the union or workplace organizing speech of employees wherever it’s spoken.

“If this employee had not mentioned the union or some kind of labor dispute, no court would say you are required to retain that person in your employ,” Charles Roberts, a partner at Constangy, Brooks, Smith & Prophete said.

But employers have to be careful about that, Roberts said, as employee rights “are almost limitless” if couched in union messaging or other forms of protected speech, such as workplace disputes.

The EEOC has responded contrarily to some of the NLRB’s defenses in some of these cases, Roberts said, as civility is not often considered in the context of protected activity. Employees could be engaged in protected speech, and yet use racial or sexual slurs in a way that otherwise would not be tolerated by a court or most company policies.

It’s already happened once before in the courts. Cooper Tire & Rubber Company v. United Steel eventually ceded protection to employees in the midst of collective bargaining who used racist language against African-American replacement workers. The employees were ultimately protected because the judge found that their language didn’t include the threat of physical violence or coercion — though the judge did find the language “racist, offensive, and reprehensible.”

The board may not stop at social media. Roberts noted that the NLRB has even begun to scrutinize rules banning cell phones or cameras in the workplace, as they could be seen as ways for employees to document their work environment.

“It’s a trend developing to the technology, of course, but there’s an effort by the current board to recognize almost unending opportunity to engage in protected activity,” Roberts said.

Can it get peeled back?

Before employers everywhere begin clutching their employee handbooks in fear, take a breath. Both lawyers agree that this current stance could be clawed back under the Trump administration and the leadership of newly appointed NLRB chair Philip Miscimarra.

Miscimarra is expected to follow the conservative Justice Antonin Scalia’s straight text interpretation of the law when ruling on board issues, which will likely lead to more conservative expansions of NLRB power.

“I would not be surprised to see some peeling back and a return more to the early days of social media where the employer was given great deference for what is distasteful,” Siegel said. “But it will take time.”

Under Trump and Miscimarra, it’s also likely that more Republican or conservative-leaning members will be appointed to the board, leading to the retraction of these protections. But the timing of that is unknown at this time. The effects of new leadership won’t be felt immediately.

Looking at the big picture: Creating a social media policy

Employers must always be sure to consider context when creating policies. In this case, the employee had been employed for 13 years and was terminated for bad language two days before a union election — a troubling timeline, Siegel noted.

Worse: The company apparently tolerated a high level of profanity in the workplace, Roberts said, making the firing look inconsistent with typical practice. Consistency is key when creating a formal social media policy.

“Make sure your [social media] policy isn’t inconsistent with your practice,” Roberts said. “Whatever you tolerate or don’t tolerate shouldn’t change from what you tolerate in the workplace.”

Don’t fall into the trap of making the policy too specific, either. Leave some leeway in place so that it can be applied on a case-by-case basis, Siegel said.

Chipotle was sanctioned late last year by the NLRB for its outdated social media policy that banned workers from using their private social media sites to “post incomplete, confidential or inaccurate information about their workplace, or from making disparaging, false or misleading statements about the company.” That policy had a “chilling effect” on employee speech, and was found unlawful by the board’s standards.

A policy that is in tune with company culture is most likely to find success when it’s implemented. The usual rules apply: Listen to your employees and encourage dialogue when you can.

PENGASSAN flays ExxonMobil over disengagement of staff

By Inemesit Akpan-Nsoh, Uyo   |   05 May 2017   |   4:19 am

The Akwa Ibom State branch of Petroleum and Natural Gas Senior Staff Association of Nigeria (PENGASSAN) yesterday decried the incessant sack of ExxonMobil staff by its management.

Speaking with journalists after its congress and protest march held at Mobil Producing Nigeria in Lagos, the union passed a vote of no confidence on the Managing Director of the oil giant, Mr. Paul McGrath.

The National Deputy President of the association, Jude Chidinwaogu said the position taken was the climax of PENGASSAN’S Congress and protest march held at the Ibeno, Lagos gate of the company. He however, alleged that the incessant sack by ExxonMobil management only affected Nigerians, while the expatriate staff were not affected, stressing that the company’s action negates the Nigerian local content law.

Summary of NLRB Decisions for Week of April 24 – 28, 2017

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 the Executive Secretary at 202‑273‑1940.

Summarized Board Decisions

Diamond Trucking, Inc.  (25-CA-144424; 365 NLRB No. 64)  Peru, IN, April 25, 2017.

The Board (Members Pearce and McFerran; Chairman Miscimarra, dissenting) granted the General Counsel’s exceptions to the Administrative Law Judge’s conclusion that the Union did not have an objective, factual basis for believing that an alter-ego relationship existed to establish the relevance of an information request.  Because the Union had an objective, factual basis for such a belief, the information was relevant, and the Respondent’s refusal to provide the requested information violated Section 8(a)(5) and (1).  Chairman Miscimarra dissented and agreed with the judge that there was no objective, factual basis for believing that an alter-ego relationship existed and that the requested information was therefore not relevant.

Charge filed by Teamsters Joint Council No. 69.  Administrative Law Judge Susan A. Flynn issued her decision on November 24, 2015.  Chairman Miscimarra and Members Pearce and McFerran participated.


Publi-Inversiones de Puerto Rico, Inc. d/b/a el Vocero de Puerto Rico  (12-CA-20344; 365 NLRB No. 65)  San Juan, PR, April 25, 2017.

The Board granted the General Counsel’s Motion to Correct the Board’s Decision and Order issued on March 10, 2017 (365 NLRB No. 29) to state in the bargaining unit description that a group of employees referred to as inserters are excluded from the bargaining unit.

Charge filed by Union De Periodistas, Artes Graficas Yramas Anexas, Local 33225.  Administrative Law Judge Melissa M. Olivero issued her decision on September 27, 2016.  Chairman Miscimarra and Members Pearce and McFerran participated.


Unpublished Board Decisions in Representation and Unfair Labor Practice Cases

R Cases

No Unpublished R Cases Issued

C Cases

Midwest Terminals of Toledo International, Inc.  (08-CA-178669)  Toledo, OH, April 25, 2017.  The Board denied the Employer’s petition to revoke investigative subpoenas duces tecum and ad testificandum, finding that the subpoenas 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 subpoenas.  Charge filed by International Longshoremen’s Association, Local 1982.  Chairman Miscimarra and Members Pearce and McFerran participated.

Simplex Grinnell, District 129  (01-CA-169310)  Windsor, CT, April 26, 2017.  No exceptions having been filed to the February 14, 2017 decision of Administrative Law Judge David I. Goldman’s 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 Road Sprinkler Fitters Local Union No. 669, U.A., AFL-CIO.


Appellate Court Decisions

Bellagio, LLC, Board Case No. 28-CA-106634 (reported at 362 NLRB No. 175) (D.C. Cir. decided April 25, 2017)

In a published opinion, the Court granted the petition for review and denied enforcement of the Board’s order issued against this operator of a casino and hotel in Las Vegas, Nevada, where a unit of its employees are represented by the Local Joint Executive Board of Las Vegas, Culinary Workers Union, Local 226, and Bartenders Union, Local 156, affiliated with UNITE HERE.  The case centers on events that occurred in relation to an investigatory meeting called after a guest complained to management that a unit employee working as a bellman had inappropriately attempted to solicit a tip and, when the customer did not oblige, allegedly responded with a sarcastic comment.

The Board (then-Chairman Pearce and Member McFerran; Member Johnson, dissenting) found that the Employer violated Section 8(a)(1) by denying the employee’s request for union representation during the resulting investigatory interview and by placing him on suspension pending investigation in retaliation for refusing to participate in the interview without union representation.  The Board unanimously found that the Employer also violated Section 8(a)(1) by engaging in surveillance of the employee, and by instructing the employee not to talk about his suspension with other employees.

On review, the Court (Circuit Judge Brown, and Senior Circuit Judges Edwards and Sentelle) stated that, under NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975)—which held that an employee has a Section 7 right to request union representation as a condition of participation in an investigatory interview if the employee reasonably believes the investigation will result in disciplinary action—an Employer has three paths open to it when an employee requests representation:  “it may grant the request, end the interview, or offer the employee the choice between having an interview without a representative or having no interview at all.”  Here, the Court held, there was no violation of the employee’s Weingarten right.  Rather, the Court stated that the Employer “worked diligently to comply” with the employee’s request.  In support of that view, the Court noted that the Employer invited the employee to contact a union agent himself, but the employee declined to do so, and that two supervisors then left the room and attempted, to no avail, to locate a union representative and sought help from the Employee Relations department.  Moreover, the Court noted, before ending the interview, the employee was given the option to fill out a written statement, which he refused to do, and only then was placed on suspension pending investigation.  On those facts, the Court found that the Employer acted consistently with Weingarten.

The Court disagreed with the Board’s determination that the Employer unlawfully retaliated against the employee when it placed him on suspension.  The Court held that the predicate “adverse action” for such a finding of retaliation was lacking, given that the suspension notice stated that it was not a disciplinary action, the employee was paid for the hours not worked, and there was no evidence that the suspension had a negative impact on his employment situation or job prospects.  The Court also reversed the Board’s two remaining findings of coercion, which pertained to events immediately after the investigative meeting when the employee was exiting the building, spoke with coworkers about this suspension in a heavily trafficked dispatch room, and a supervisor present at that location told him to stop talking about his suspension, and continued to watch him to make sure he exited the building.  First, the Court held that substantial evidence did not support the Board’s finding of surveillance, given that the supervisor’s observation of the employee in the dispatch room was brief and routine, and it was not unusual for the supervisor to be present there.  Second, the Court held that the Board’s finding that the Employer acted unlawfully when it instructed the employee not to talk about his suspension with other employees in the dispatch room could not be supported because it was not closely connected to the complaint allegation that the Employer had promulgated an unlawful rule against employees discussing discipline, and was not fully litigated.  Nonetheless, the Court held that even if the allegation had been properly included in the complaint, it would still reverse because, in the Court’s view, “it was perfectly reasonable for the [employer] to instruct [the employee] to leave the workplace pending investigation of his alleged wrongdoing.”

The Court’s opinion is here (link is external).

Minteq International, Inc., and Specialty Minerals, Inc., wholly owned subsidiaries of Mineral Technologies, Inc., Board Case No. 13-CA-139974 (reported at 364 NLRB No. 63) (D.C. Cir. decided April 28, 2017)

In a published opinion, the Court enforced the Board’s order issued against this provider of products and services to the steel industry.  The Board found that the Employer violated Section 8(a)(5) and (1) by requiring employees to sign a non-compete and confidentiality agreement without first notifying or bargaining with the International Union of Operating Engineers, Local 150, AFL-CIO, and violated Section 8(a)(1) by maintaining two overbroad provisions in that agreement that employees would reasonably construe as restricting activities protected by Section 7.

The Board (then-Chairman Pearce and Members Hirozawa and McFerran) found that requiring employees to sign the agreement was a mandatory subject of bargaining that the Employer could not unilaterally impose without providing the union with notice and an opportunity to bargain.  Specifically, the Board found that the agreement directly and primarily impacted terms and conditions of employment by subjecting current employees to rules governing their conduct that could lead to discipline, by indefinitely binding employees in a manner that lasts beyond their current employment, and by imposing significant economic costs on employees outside the workplace by restricting their ability to benefit from knowledge acquired from their work experience and going so far as to bind the employees’ heirs.  In doing so, the Board rejected the Employer’s contention that the Union waived its right to bargain over imposition of the agreement because, the Employer claimed, it ran to the core of its entrepreneurial control and was thus “covered by” the management-rights clause of the collective-bargaining agreement.  The Board determined that under either the “covered by” standard applied by the D.C. Circuit, or the Board’s “clear and unmistakable waiver” standard, the collective-bargaining agreement could not fairly be read as privileging the Employer’s unilateral action.

Additionally, the Board found two of the agreement’s provisions to be unlawfully overbroad and restrictive of employee rights.  First, the Board concluded that the provision that employees could not “intentionally solicit or encourage any present or future customer or supplier of the [employer] to terminate or otherwise alter his, her or its relationship with the [employer] in an adverse manner” could reasonably be read by employees as restricting product boycotts in support of a labor dispute and other forms of lawful appeals to customers.  Second, the Board concluded that the provision requiring acknowledgement that the agreement “does not affect [the e]mployee’s status as an employee-at-will,” could reasonably be read by employees as affecting the collective-bargaining agreement’s provision that employees who complete a six-month probationary period may only be disciplined or discharged for just cause.

On review, the Court upheld the Board’s finding that the Employer’s imposition of the agreement containing the non-competition and non-disclosure requirements was a mandatory subject of bargaining “consistent with longstanding, uniform Board precedent,” and agreed with the Board that the management-rights clause did not privilege the Employer’s unilateral action.  The Court noted that, “at a minimum, nothing in the management-rights clause . . . permits [the employer] to impose obligations on employees after they leave employment,” or “to bind the employees’ ‘heirs, successors, and assignees.’”  Regarding the two provisions that the Board found unlawfully overbroad, the Court agreed that employees could reasonably read them, in turn, to restrict “the right of employees to support a consumer boycott of their employer’s products in connection with a labor dispute,” citing DIRECTV, Inc. v. NLRB, 837 F.3d 25 (D.C. Cir. 2016), and “to make employees removable at will for the entire time they are employed, rather than only during the initial six-month probationary period.”

The Court’s opinion is here (link is external).


Administrative Law Judge Decisions

Shamrock Foods Company  (28-CA-177035, et al.; JD-(SF)-18-17)  Phoenix, AZ.  Administrative Law Judge Eleanor Laws issued her decision on April 25, 2017.  Charges filed by Bakery, Confectionery, Tobacco Workers’ and Grain Millers International Union, Local Union No. 232, AFL-CIO-CLC.

AT&T Mobility, LLC  (05-CA-178637; JD-27-17)  Washington, DC.  Administrative Law Judge Arthur J. Amchan issued his decision on April 25, 2017.  Charge filed by an individual.

Mexican Radio Corp.  (02-CA-168989; JD(NY)-09-17)  New York, NY.  Administrative Law Judge Kenneth W. Chu issued his decision on April 26, 2017.  Charge filed by an individual.

International Alliance of Theatrical Stage Employees, Local 62 (Shepard Exposition Services, Inc.)  (27-CB-184181 and 27-CB-190753; JD(SF)-17-17)  Colorado Springs, CO.  Administrative Law Judge Jeffrey D. Wedekind issued his decision on April 27, 2017.  Charges filed by an individual.

Harbor Rail Services Company  (25-CA-174952; JD-26-17)  Belvidere, IL.  Administrative Law Judge Andrew S. Gollin issued his decision on April 28, 2017.  Charge filed by an individual.

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