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Can employees engage in a concerted stretching exercise during work hours?  The NLRB recently said yes.

The NLRA allows employees to engage in demonstrations to support their union, including demonstrations in support of contract proposals.  However, the law does not protect employees from engaging in work slowdowns or other refusals to perform work.  Strikes are protected, but they generally are an “all or nothing” proposition.  The general rule is that employees must completely stop work and leave the premises to enjoy the protections of the NLRA for strike activity.  Employees must normally show this support for their union in nonworking areas of the workplace during nonworking time.

In Consolidated Communications, a group of employees stood up from their workstations at an appointed time and engaged in stretching exercises in unison.  But, they did so during working time and in working areas.  So, how did the Board find that this action was protected?

The majority of the board panel viewed the action as protected because they found that the employees did not refuse to perform work or engage in a “slowdown.”  The majority noted that there was no rule against stretching, that employees had normally stretched from time-to-time at their workstations, and that the stretching activity did not result in work not being performed.  Seeing no refusal to work, the Board majority concluded that the action remained protected even if it occurred during working time in working areas.

In dissent, Member Emanuel viewed the matter differently.  By participating in the stretching action during work time, the employees necessarily engaged in a refusal to work.  Even if the time away from work was minimal, it had to result in some lost work time.  As such, he viewed the action as being unprotected and thought that the employer could lawfully discipline the employees.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

In a recent decision, a Board panel majority found that an employee was unlawfully fired for writing “whore board” on an overtime sign-up sheet at work.  This decision highlights the expansive nature of employee activity protected by the NLRA and the limited value that the NLRB can sometimes place on employer property rights.

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In this case, the employer instituted a new overtime policy, which, unlike the old policy, included discipline for failure to work an overtime shift.  As with the old policy, the employer maintained an overtime sign-up sheet.  The union representing the employees filed grievances and unfair labor practice charges against the new policy.  Due to the new disciplinary consequences of failing to work an overtime shift, employees began to refer to the sign-up sheet as the “whore board.”

Importantly, the employer took no action against employees for using the phrase “whore board” and acknowledged that employees (and supervisors) often used vulgar language at work.  However, when an employee transformed words into action and wrote “whore board” in graffiti on the overtime sign-up sheet, the employer terminated his employment.

Section 7 of the NLRA grants employees the “right to … form, join, or assist labor organizations … and to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 7 has been construed to give employees the right to engage in activity to oppose employer policies, including by using profane or vulgar language (sometimes referred to as “shop talk”).

When an employee’s conduct reaches the outer bounds of protected activity, the NLRB essentially asks if the conduct is so outrageous that the employee loses the protections of the Act.  As part of this inquiry, the NLRB tries to balance the employee’s Section 7 rights and the employer’s right to maintain order in the workplace.

Here, the Board panel held that writing “whore board” on the sign-up sheet was not so egregious for the employee to lose protection of the Act.  As to the substance, the Board found the use of profanity to be relatively uncontroversial.  In this regard, the use of the profane phrase “clearly impl[ied] that those who signed it were compromising their loyalty to the Union and their coworkers in order to benefit themselves.”  Regarding the act of graffiti, the Board found that the act was spontaneous and grew out of the employees’ protest of the new policy.  Furthermore, the Board noted that there was no effect on production at the facility and that the employer tolerated profanity in the workplace.

In dissent, Member Emanuel observed that the majority did not adequately consider the employer’s property rights when balancing the respective interests of the employer and employees.  He further noted that prior Board decisions had held that property defacement – which undisputedly occurred in this case – was not protected activity under the Act.  Emanuel called for the Board to reconsider the test for employee misconduct in a future case to give more weight to lawful employer property interests.  Given current the republican-majority, Board-watchers should pay close attention to future cases involving conduct that is arguably more egregious than the “whore board” graffiti in this case.  If such a case reaches the Board, it is reasonable to expect that it may change its approach to these cases.  The case also serves as a reminder that even a more management friendly Board can still issue labor friendly decisions due to the fact that most decisions are issued by three-member panels that can include a labor friendly majority.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

On June 6, 2018, the NLRB issued two Orders that put an end to the Hy-Brand case, which briefly changed the NLRB’s standard for determining whether two employers were jointly responsible for violations of federal labor law and collective bargaining. As we explained in previous posts (links), in December 2017 the Hy-Brand Board returned the joint employer standard back to require “direct and immediate” control over the terms and conditions of employment that existed prior to the Board’s 2014 decision in Browning-Ferris Industries. Hy-Brand was a relief to the business community because it ensured that a business would not become a joint employer without actually exercising control over the employment of employees of other companies.

Hy-Brand came crashing down, however, when the Board vacated the decision based on the failure of Board Member William Emanuel to recuse himself due to ethical issues. The NLRB’s Inspector General investigated Emanuel’s links, through his former law firm, to an employer in the Browning-Ferris Industries case and found that he should have recused himself in the matter. The IG’s report found that Emanuel’s participation in Hy-Brand affected the client of his former law firm by overruling Browning Ferris Industries. After vacating the decision, the Board remanded the case for further proceedings.

On remand, the Board found that the employers in Hy-Brand were jointly liable under federal labor law, but not on joint employer grounds. Instead, the Board found that the employers were single employers, meaning, essentially, that their corporate structure was so intertwined that they acted as a single company in terms of control over employment terms. Therefore, the result of the decision was basically the same as the original Hy-Brand decision, but it now has no effect on the Board’s joint employer standard. Thus, the broader and more labor-friendly “share or codetermine” test of Browning-Ferris Industries is still the law of the land.

The Board has now decided that rather than wait for the next case involving joint employment to come onto its docket, it will address this issue by way of rulemaking. For context, the Board rarely promulgates rules and it usually makes rulings on a case-by-case basis, but it does have the power to do so like any other administrative agency. Going forward, the Board will need to publish the rule after drafting it and allow for comment from the public on any new rule it announces before it takes effect.  At this point, we will have to wait and see what happens.  Stay tuned.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

This past Monday, April 30, marked the conclusion of a weeklong strike conducted by Columbia graduate students at the University’s campus. Timing, as people say, is sometimes everything – especially in an ongoing labor dispute – and here these graduate students scheduled a strike for the last – and busiest – week of the semester.

As such, the strike was expected to be problematic for both professors who rely on graduate students to teach classes, perform research, and grade papers and exams, and for undergraduate students who attend these classes and anticipate receiving grades in a timely fashion. Indeed, there is no denying that the strike was at least somewhat disruptive as reports indicated that several hundred students and professors either moved classes off campus or cancelled them altogether. This, coupled with the fact that the turnout for the strike was greater than expected, is something the union likely considers a victory (in addition to the outside support received from the likes of President of Ireland Michael Higgins, U.S. Congressman Jerry Nadler, and Sex and the City alumna turned NY gubernatorial candidate Cynthia Nixon). In fact, according to an article by the Columbia Daily Spectator (the weekly student newspaper of the University), union organizers and graduate student leaders have already pledged to strike again at some point in the next academic year and have even discussed possible public demonstrations during graduation ceremonies.

Still, the University did not blink and it proceeded with business as usual over the course of the strike. However, as explained in a prior blog post by my colleagues, the University is still currently waiting – and likely hoping – for the graduate students’ union (Graduate Workers of Columbia-United Automobile Workers) to file unfair labor practice charges against it for refusing to bargain over an initial contract. This would then start a litigation and appeals process before the Board and federal court of appeals on the issue of whether graduate students are statutory employees under the Act and, perhaps, even lead to a Supreme Court decision that would settle this matter once and for all. But, doing all of this takes a lot of time and money and that, as well as the fear of an adverse decision, are likely to blame for the union’s failure to file any ULP charges.

Moving forward, unless the University changes its tune and decides to start bargaining with the union (which, at this point, there is a better chance of the Jets winning the Super Bowl!), do not be surprised if similar actions are undertaken by these graduate students down the road. All of this, however, may end up being inconsequential if the proper case comes before the Republican-controlled NLRB and the 2016 Columbia University Board decision that started this mess is overturned. But, with more and more graduate student unions across the country withdrawing their petitions in order to avoid becoming such a vehicle for overturning precedent, it is unclear exactly when this will happen.

Nevertheless, good things do come to those who wait, and ultimately I believe Columbia University – along with the several other private institutions across the country refusing to bargain with their respective graduate student unions – will see the fruits of their labor rewarded when this Board reverses course once again and finds that graduate students are not employees under the Act. Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

On April 20, 2018, the National Labor Relations Board, by adopting an ALJ’s decision, held that employees who replied in agreement to another employee’s critical group email about the employer’s workplace were engaged in protected concerted activities under the Act. The email discussed wages, work schedules, tip policies, working conditions, and management’s treatment of employees – all of which are protected topics of conversation as they encompass workers’ terms and conditions of employment. Notably, the email specifically addressed the other employees and advised that it was illegal for “management to intimidate” them, among other remarks.

Still, in the course of investigating, the employer ended up terminating each employee who responded positively to the critical email. The employer argued that these employees were not terminated for their responses, but rather were terminated for refusing to be interviewed by the restaurant regarding their concerns about the email and for skipping/walking out on scheduled shifts. In essence, the employer contended that the ALJ expanded the reach of protected concerted activity by finding concerted insubordination to be protected.

Ultimately, the Board held that neither the critical email nor the employees’ responses – which included such statements as “Thank you for standing up for us” and “I agree a 100% as well” – were egregious enough to lose the protections of the Act. The Board further found that the employer’s purported reasons for discharge were pretextual in nature. As such, the Board ordered the restaurant reinstate these employees to their prior positions, provide them with backpay for lost wages, and hang a notice posting at the job location (though compliance in terms of reinstatement and notice posting may be difficult since the restaurant has since closed).

In sum, this case serves as a helpful reminder to tread lightly whenever your employees are discussing terms of employment like wages, working conditions, and their general treatment at work, regardless of the forum (e.g., in-person, social media, or a group email). Here, the restaurant’s reaction to this critical email, and the employees’ responses, was less than ideal as it resulted in the employer terminating each employee within two days of responding to the email.  Notwithstanding legitimate reason(s) for discipline, the optics of this case placed the employer in an uphill battle from the beginning. And this, of course, would likely not have been the outcome had the employer contacted experienced labor attorneys prior to taking any action.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Though it may come as a surprise to some employers, the NLRB generally recognizes the right of employees to wear union insignia (pins with union logos, etc.) while at work.  This rule applies to hospitals, but the Board and the courts, in recognition of the sensitive nature of working in medical facilities, have restricted employees’ rights to wear union insignia in “direct patient care areas.”  A recent case, Long Beach Memorial Medical Center, 366 NLRB No. 66 (April 20, 2018), addressed this rule as it applies to hospitals, but also provided a signal that the Board, now with 3-2 Republican-appointed majority, may be willing to change the rule in a future case.

Section 7 of the NLRA grants employees the “right to … form, join, or assist labor organizations … and to engage in … concerted activities for the purpose of collective bargaining or other mutual aid or protection.”  Section 7 has been construed to give employees the right to engage in activity to advance a union cause, including wearing union insignia to demonstrate their support for a union seeking certification or to further its bargaining aims once certified as the employees’ exclusive representative.

Section 7 rights, however, are balanced with the rights of employers to operate their businesses and manage their property.  Under this balancing test, an employer might be able to restrict an employee from wearing an entire outfit covered in union decals, assuming it had a neutral uniform policy.  But, an employer would have great difficulty in attempting to ban a small union pin worn on an employee’s lapel.  The Board has held that an employer seeking to assert a complete ban on union insignia must show “special circumstances,” usually involving a unique set of facts that are not normally present at most places of employment.  Regular uniform policies will not meet this stringent test.

In the medical realm, the balancing test is not applied and, instead, the Board looks to whether the employer’s prohibition on union insignia applies to “direct patient-care areas” or other areas of the hospital in question.  In Long Beach, the Board found that the Hospital’s rule prohibiting union insignia was overbroad because, by its own terms, it was not limited to “direct patient-care areas.”

A bright-line rule against union insignia in direct patient-care areas can streamline the discussion of the legality of a “no-pin” rule and simplify the law for all parties.  By contrast, the traditional balancing test demands that employers show specific facts to demonstrate that their interests override the Section 7 rights of employees.  The Long Beach decision, therefore, was not controversial because it merely applied the test applicable to medical facilities.

However, the (very) short discussion of uniform policies at the end of Member Emanuel’s dissenting opinion highlighted a long-standing disagreement between Democratic and Republican Board members about whether uniform policies constitute “special circumstances” that are strong enough to overcome employees’ Section 7 rights.  Emanuel found that one aspect of the employer’s policy, which applied to name badge lanyards, was limited to direct patient-care areas.  He, therefore, believed that that portion of the rule should have been upheld.  However, Emanuel noted that even if the lanyard rule applied to non-patient care areas, he would have found the restriction lawful as part of a neutral uniform policy.  Emanuel’s inclusion of this topic most likely constitutes a signal to practitioners that the Republican-majority Board will be more receptive to arguments from employers that uniform policies are sufficient to justify a prohibition on union insignia at work.  If this signal proves correct, the Board may be ready to allow employers, especially hospitals, to restrict the wearing of union insignia at work.  Stay tuned.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

Undergraduate resident advisors usually wield a lot of power over university residence halls and those who occupy them. You likely know this already if you were ever a college freshman living in the dorms and received a write-up or warning from your RA. But, for those who do not know, RAs – who are often only slightly older than the college students they oversee – are essentially there to supervise their peers living in dorms and make sure nothing (too) crazy happens. Last week, however, an NLRB Regional Director decided to give RAs at Reed College a right many of them probably did not even consider until recently: the opportunity to unionize.

Pursuant to the Board’s 2016 Columbia University Decision, which entitled university student workers at private campuses – both graduate and undergraduate teaching and research assistants – the right to collectively bargaining, the Regional Director found these RAs were statutory employees under the Act and ordered an election take place. The Regional Director concluded RAs provide a service for compensation, are under Reed College’s control and supervision and, ultimately, that there is no compelling policy reason to exclude them from coverage under the Act.

On the other hand, Reed College argued that Columbia University was wrongly decided and, actually, was not applicable because RAs are not teaching or research assistants. The College also argued that the RAs’ main focus was supporting and mentoring fellow students and that this aspect of their job was inseparable from their role as students, not employees. Notwithstanding these legitimate points, the Regional Director unsurprisingly rejected the College’s arguments. This was unsurprising because Columbia University is still the law of the land and RAs, like teaching and research assistants, are paid for their services, apply and train for the position, and undergo performance reviews. Thus, RAs would have likely garnered a similar finding by the Board who decided Columbia University.

Until the Board finds the proper vehicle to overturn this Obama-era precedent, we can likely expect other subsets of students paid for services at private universities to attempt to unionize as well. Still, the clock is ticking on Columbia University and this fact is not lost on unions attempting to organize students across the country. Indeed, unions at several private universities are now electing to withdraw their representation petitions for fear that a Republican-controlled Board will use their case to overturn Columbia University. Instead, these unions will attempt to pressure these institutions and seek voluntary recognition, a somewhat baffling choice because private universities have long rejected this option and will likely continue to do so (with the exception of only one private institution).

This union action is likely only delaying the inevitable, but, in the end, only time will tell whether Board precedent concerning higher education organizing will flip-flop once again.  Stay tuned.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Sometimes, using only one word can make all the difference between a lawful and unlawful statement. Washington University in Saint Louis learned this lesson the hard way when in late October 2017 Associate General Counsel for the NLRB’s Division of Advice Jayme L. Sophir instructed Region 14 to issue complaint, absent settlement, against the University.

The Advice Memorandum, released to the public on February 15, 2018, found the University violated Section 8(a)(1) of the Act by threatening foreign graduate students with deportation if they elected a union and, later on, their union engaged in a strike. Specifically, the statement – “all foreign students will lose their visas and have to leave the country” – was unlawful because a strike would not automatically result with graduate students losing their visas. As labor practitioners know, employer predictions regarding unionization must be based on objective facts and, in general, be measured, reasonable and not overstate adverse consequences as such actions could be seen as restraining and coercing employees’ Section 7 rights.

Here, while a strike could potentially lead to these graduate students losing their visas and being deported, Associate General Counsel Sophir noted the University “overstated the requirements of the applicable regulations and the potential effects of those regulations on the affected graduate student employees.” Conversely, the other statements made by the University concerning immigration laws and potential consequences were found to be lawful because “they either set forth the exact language of the applicable Federal regulations or merely accurately conveyed the possibility that a strike ‘could’ lead to the loss of student visas.” Indeed, all of the statements made by the University would have likely been lawful if the word “will” was simply replaced with the word “could” in the statement at issue. The University, however, did not have to litigate the lawfulness of the statement because the Union chose to withdraw its unfair labor practice charge, resulting in the matter being closed.

Ultimately, this case serves as a helpful reminder that employers must be mindful of its communications with employees during a union organizing campaign and, particularly, seek competent legal counsel prior to taking any action during such times. If not, employers could find themselves in violation of the Act, except likely not have the good fortune of having the complaint against it withdrawn.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.

Graduate students at most private universities have been allowed to unionize since the 2016 decision of the NLRB in Columbia University.  This decision was controversial because the employee status of graduate students has flip-flopped over time, depending on whether members appointed by Democratic or Republican Presidents controlled the Board.  Since 2016, the makeup of the Board has shifted from a Democratic majority to Republican control.  While Democratic appointees generally support the notion that graduate students should be considered employees, Republican appointees do not.  Thus, it is highly likely that graduate students’ status before the eyes of the Board will change, if a University brings a challenge.

However, for Columbia University it is not that simple because the Board has already ruled on the merits of graduate student employee status, and it recently approved the election last December.  Columbia cannot simply ask the Board to reverse itself because the Board’s membership has changed.  Rather, Columbia must first refuse to bargain with the United Auto Workers Union (“UAW”), the representative of its graduate students, and rely on the UAW to file a refusal to bargain charge with the Board.  This Columbia has already done.  In a recent letter, Columbia notified the union that it will not bargain with the UAW regarding a first contract for Columbia’s graduate students.  The Board would then hear the matter, and likely conclude that Columbia did in fact violate the National Labor Relations Act (“the Act”) and order Columbia to bargain.   This in turn will permit Columbia to challenge the Board’s ruling that Columbia’s graduate students are employees under the Act before a United States Circuit Court of Appeals, presumably the D.C. Circuit.

The outcome of this looming appeal will cast a long shadow on graduate student organizing across the country.  If one of the parties to the appeal is unhappy with the result, the matter could reach the U.S. Supreme Court, which would settle this matter for good.

Regardless, how a U.S Court of Appeals decides the matter, expect the Trump Board to reverse course and once again find that graduate students are primarily students rather than employees and conclude that they are guaranteed the right to organize under the Act.

Andrew MacDonald is an associate in the firm’s Labor and Employment Department, resident in its Philadelphia office.

Chip Zuver is an associate in the firm’s Labor and Employment Department, resident in its Los Angeles office.

On January 29, 2018, the DC Circuit remanded a 2016 NLRB decision – Grill Concepts Servs., Inc., 364 NLRB No. 36 (2016) – back to the Board for reconsideration of several employee handbook violations found unlawful under the now-replaced Lutheran Heritage standard in light of the Board’s new standard recognized in Boeing Co., 365 NLRB No. 154 (2017).

As explained in a previous Alert, the prior standard considered work rules unlawful if employees would “reasonably construe” them to interfere with union or other protected concerted activity under Section 7 of the Act.  Until this past December, the Obama Board unreasonably interpreted and applied this decision for several years. That, however, changed in Boeing when the Board adopted a balancing approach that considers “the nature and extent of the potential impact” on Section 7 rights and the employer’s “legitimate justifications” for the rule.

Fast forward to this case and the DC Circuit has agreed to remand several work rules the Board previously found unlawful under the now-overruled “reasonably construe” standard.  These rules, contained in the restaurant’s employee handbook, include a “Team Member Relations/Positive Culture” rule requiring employees to interact respectfully with management, an “Online Communications” rule, and a “Team Member Conduct While Representing the Restaurant” rule (just to name a few). And while it is not unusual for a federal court of appeals to remand a matter back to an agency, especially when encountered with a change in policy by said agency, this situation should help instruct employers previously found to have unlawful work rules and currently in the midst of an appeals process.

This decision to remand will also allow the Board to give more guidance to employees and employers alike by actually applying the new standard to different facts and circumstances than those examined in the Boeing case. Yet, the clear guidance we all desire – but at times hardly get – can only happen when John Ring is confirmed by the Senate and gives the Board a 3-2 Republican-majority once again. Until then, any case taken up by a four-member Board evenly divided among party lines will likely end up deadlocked 2-2 and possibly constrain the application of the new Boeing standard.

Carlos A. Torrejon is a former NLRB Attorney and an associate in the firm’s Labor and Employment Department, resident in its Morristown office.