Protected Concerted Activity (PCA)

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 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.

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.

The National Labor Relations Board has ruled that an employer does not necessarily violate the National Labor Relations Act by maintaining a facially neutral work rule, policy or handbook provision that could be reasonably construed to interfere with union or other protected concerted activity protected under Section 7.

The 3-2 decision in The Boeing Company, handed down on Dec. 14, overrules Lutheran Heritage Village-Livonia, in which the NLRB declined to consider the employer’s justification for a facially neutral rule or the extent the rule might burden Section 7 activity.

During the Obama administration, the NLRB routinely applied the Lutheran Heritage rule to invalidate facially neutral employer rules adopted and applied for legitimate business reasons unrelated to an employee’s Section 7 activity. Examples of Section 7 activity would include the employees’ right to unionize or discuss wages and working conditions.

Now, in The Boeing Company, the NLRB has added leeway for employers by holding that enforcement of a facially neutral rule will not be deemed unlawful simply because an employee could “reasonably construe” the rule to interfere with Section 7 activity. Rather, the NLRB will apply a balancing test that considers “the nature and potential impact of the rule” on Section 7 activity and the employer’s “legitimate justification” for the rule. The NLRB will evaluate the rule from the perspective of the employee.

Pursuant to this balancing, employer rules will fall into one of three categories.

Category I Rules – those the NLRB concludes are generally lawful to maintain either because (i) the rule “does not prohibit or interfere with the exercise of NLRA [Section 7] rights, or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule.” The NLRB provided two examples: a rule requiring employees to engage in “harmonious interactions and relationships necessary to comply with basic standards of civility” (basic civility rules), and the no-camera/photography policy at issue in The Boeing Company.

Category II Rules – those requiring scrutiny by the NLRB on a case-by-case basis to determine whether the rule’s adverse effect on Section 7 rights outweighs the employer’s legitimate justification for the rule. The NLRB declined to provide an example of such a rule.

Category III Rules – those the NLRB generally finds unlawful to maintain because the rule predictably has an adverse impact on Section 7 rights that outweighs any employer justification for the rule. Category III rules include those that prohibit employees from discussing their wages or benefits with one another.

Applying its new test, the NLRB concluded that Boeing’s facially neutral policy that restricts the use of camera-enabled devices on Boeing property was a lawful Category I rule. The NLRB noted that although the no-camera rule might in some circumstances potentially effect employees’ exercise of their Section 7 rights, this adverse impact was comparatively slight since the vast majority of pictures or images blocked would be unrelated to any protected activity.

Moreover, the NLRB concluded that the potential adverse impact on Section 7 activity was outweighed by Boeing’s business justifications for the no-camera rule. According to the NLRB, Boeing’s justification was especially compelling because the rule is necessary to maintain accreditation to perform classified work for the federal government, to comply with Boeing’s duty to prevent the disclosure of export-controlled materials to unauthorized persons, to protect proprietary information and to minimize the risk that personally identifiable employee information would be released. The NLRB said that it would likely find no-camera/photography rules lawful under category I even with less compelling business justifications.

Employers are now able to lawfully implement and maintain facially neutral work rules that have the potential to interfere with Section 7 activity so long as the rule has a direct and immediate relationship to the employer’s business and enforcement of the rule is unlikely to have much effect on Section 7 rights.  Even with category I rules, the devil is in the details. One employer’s  no-camera rule might be lawful while another’s might not, depending on the language of the rule, the justification for the rule and the circumstances in which the rule was implemented.

What goes around, comes around, they say, right? Not so fast said one NLRB Administrative Law Judge on November 22, 2017, when she held that the Communication Workers of America, Local 1101, violated Sections 8(b)(1)(A) and 8(b)(2) by attempting to cause Verizon Communications, Inc. to discriminate against former union member Sidra Epps for crossing the picket line. The Union and Company had a collective bargaining agreement that expired in August 2015 and, after not coming to terms on a successor agreement, the Union began a strike in April 2016 that involved nearly 40,000 employees stretching from Maine to Virginia. Expectedly, Ms. Epps, who had been a Union member since 1996, was assigned picket duty but she found this task to be too arduous due to her various health conditions. Unexpectedly, however, the Union decided that this 20-year member’s strike activity was not sufficient to warrant her receipt of strike benefits, effectively leaving Ms. Epps without any resources during the unknown duration of the strike (it lasted approximately seven-weeks and was considered a success by both the local and international). As a result, Ms. Epps resigned from the Union and crossed the picket line.

In the weeks following the conclusion of the strike, several Union officials attempted, either in person or by phone, to get Verizon to transfer Ms. Epps from the Company’s Manhattan location where she worked throughout her time with the Company. Ultimately, while the ALJ recognized that the record was devoid of direct evidence showing the Union attempted to cause Ms. Epps’s transfer, the ALJ credited the testimony of the Verizon official repeatedly solicited to move Ms. Epps over the inconsistent testimony proffered by Union officials. Notably, the ALJ also relied on inconsistencies between the Union’s position statement provided to the Region in response to the unfair labor practice charge and the Union’s testimony offered on the day of trial.

Simply put, the Union was caught red handed in attempting to persuade Verizon to transfer Ms. Epps for crossing the picket line after she was denied the most important benefit afforded to her during a strike as a bargaining unit member: a benefit to subsidize her loss of wages. Making matters worse, the Union apparently failed to have a full grasp of the facts before submitting their position statement and these inconsistencies were highlighted at the hearing. It should also be noted that Verizon would have been in violation of Section 8(a)(3) of the Act if it acquiesced to the Union’s transfer requests of Ms. Epps.

In sum, this ALJ decision may not deter this type of union misconduct that occurs more often than labor bosses are willing to admit, but hopefully this case does shed some light on how resentful and spiteful some unions can be (even towards their own).

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

Now that most, if not all, employees have smartphones with cameras in their pockets at all times, some employers have prohibited recording in the workplace. However, recent decisions by the National Labor Relations Board (“NLRB” or “the Board”) have found that “no recording” policies are illegal under the National Labor Relations Act (“the Act”). In fact, one case was upheld by a federal circuit court of appeals. Whole Foods Mkt. Grp. Inc. v. NLRB, Civ. 16-0002 (2nd Cir., June 1, 2017) (enforcing Whole Foods Mkt., 363 NLRB No. 87 (2015)). The NLRB essentially finds that these policies conflict with the rights of employees to record themselves engaging protected activities (strikes, protests, etc.) under the Act.

SupermarketIn Whole Foods, the unlawful policy at issue, in relevant part, stated: “in order to encourage open communications, free exchange of ideas, spontaneous and honest dialogue and an atmosphere of trust …. It is a violation of [the Employer’s] policy to record conversations … or company meetings with any recording device … unless prior approval is received ….”

When evaluating employer rules, the NLRB looks to see “whether employees would reasonably construe the language [of the rule] to prohibit [protected] activity.” In undertaking this analysis, the NLRB uses an objective standard to measure how, in the Board’s view, a reasonable employee would read and understand the rule. As such, employer rules are illegal when they tend to chill employees in the exercise of their rights.

Notably, the NLRB has found in past case that employees are, under some circumstances, allowed to make audio/visual recordings of protected activities, which include picketing and documenting alleged unsafe work conditions. Thus, the Board found in Whole Foods that the rule prohibiting all recordings conflicted with this right.

Under the rule explained in Whole Foods, an employer cannot maintain a blanket policy prohibiting recordings in the workplace, unless there is some employer overriding interest. Regarding the interests necessary to override employees’ rights to record, the NLRB has rejected employers’ arguments regarding to free-exchange of ideas in the workplace and dialogue about business strategy. Significantly, an NLRB Administrative Law Judge has even found that recordings cannot be completely banned in a nuclear power plant. Entergy Nuclear Operations, Inc., 01-CA-153956 (May 12, 2017). In one case, however, the Board allowed a hospital to prohibit recordings due to patient privacy concerns. Flagstaff Med. Ctr., 357 NLRB No. 65 (2011).

Thus, unless the employer can prove to the NLRB that an overriding interest is present, employers will need to craft narrow policies that prohibit recordings without tending to “chill” the rights of employees. As it stands now, the Board has suggested that this mission is possible, but has not provided much guidance as to how to design such a narrow policy. At best, the Board might uphold a policy that expressly states employees are allowed to record protected activity or record during non-work time, but only time will tell. However, as the winds of political change blow over the NLRB, the current Board, with a majority of Republican-appointed members, may be more receptive to employer arguments regarding the lawfulness of “no recording” policies.

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

The National Labor Relations Board (“NLRB” or “Board”) has taken a jaundiced view of employer policies that require respect and civility in the workplace over the past several years. The Board has found such rules generally interfere with employees Section 7 rights and thereby violate Section 8(a)(1) of the National Labor Relations Act (“the Act”). Fortunately, the Fifth Circuit Court of Appeals (“the Court”) takes a more holistic view of civility rules. In T-Mobile USA, Incorporated v NLRB, No. 16-60284 (5th Cir. June 25, 2017), the Court, contrary to the Board, found lawful two civility rules because nothing in the language of the rules, nor in their implementation, would lead a reasonable employee to believe the rules restrict protected, concerted activity.

In the underlying case, the Board found that T-Mobile (“the Company”) violated Section 8(a)(1) by maintaining in its employee handbook two civility rules:

  • a workplace conduct rule that encouraged employees to “maintain a positive work environment by communicating in a manner that is conducive to effective working relationships with internal and external customers, clients, co-workers, and management”; and
  • a commitment to integrity policy that required employees to “exercise integrity, common sense, good judgment, and act in a professional manner …” and prohibited, among other things, “[a]rguing or fighting with co-workers, subordinates or supervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork.”

With respect to the workplace conduct rule, the Court rejected the Board’s contention that reasonable employees would view the language of the rule to discourage protected activity, such as contentious discussions about a unionization. The Court noted, under Lutheran Heritage Village-Livonia, the Board is not to presume that an employer’s rule improperly interferes with employee rights, nor look to see if the rule could conceivably cover Section 7 activity. Rather, the Board is to determine objectively how a reasonable employee would read the rule. The Court noted the employer did not adopt the rules in response to any protected, concerted activity nor were the rules applied to restrict such activity. In short, nothing in the context of the case suggested that a reasonable employee would read the rule to restrict Section 7 activity. In a normal workday in a normal workplace, a reasonable employee would read the rule to “express a universally accepted guide for conduct in a responsible workplace.”

Similarly, with respect to the commitment to integrity policy, the Court rejected the Board’s contention that the policy violated the Act because it would inhibit robust discussion of labor issues, concluding that the policy is a “common sense civility guideline.” The Court noted that the rule’s prohibition on “arguing or fighting,” “failing to treat others with respect,” and “failing to demonstrate appropriate teamwork” appeared in a list of other prohibited actions, “including theft, fraud, dishonesty, and sleeping on the job.” Noting the serious nature of the other listed acts of misconduct, the Court concluded that a reasonable employee would not interpret the integrity policy to prohibit two employees heatedly debating the merits of union or other protected activity, but rather prohibit only more egregious misconduct similar in nature to theft or fraud. The Court also reasoned that the policy would not interfere with a reasonable employee’s Section 7 activity because an employee would surely be able to engage in vigorous debate with others over union activity or working conditions without fighting, disrespecting colleagues, or refusing to act as a team.

Once President Trump’s nominees are confirmed by the Senate, the Board will likely adopt a more balanced approach to employer civility rules. Until then, the Board will continue to find civility policies similar to these unlawful, and employers will need to seek review in United States Court of Appeals such as the Fifth Circuit if they wish to retain their civility rules.

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

Racist comments, similar to other forms of employee misconduct (e.g., workplace violence or theft), usually result in termination. Anyone with an ounce of common sense knows this. The National Labor Relations Board, however, upheld an Administrative Law Judge’s prior decision declining to follow an arbitrator’s ruling and ordered Cooper Tire & Rubber Co. reinstate an employee, with back pay, after he was terminated for making racist statements on a picket line. This untenable Board decision was previously blogged about here. Fast forward to August 8, 2017, where a divided Eighth Circuit Panel, in a 2-to-1 ruling, upheld this NLRB decision.

The facts are straightforward: the Company, after failing to negotiate a new contract, locked out its employees and hired temporary replacement workers, many of whom were African-American, to resume operations during the lockout. As a result, the locked out employees began picketing. One night, picketer Anthony Runion (“Runion”) made racist comments aimed towards replacement workers travelling in a van across the picket line. Specifically, Mr. Runion yelled, “Hey, did you bring enough KFC for everybody?” and “Hey anybody smell that? I smell fried chicken and watermelon.” After the resolution of this labor dispute, the Company refused to reinstate Mr. Runion because of these racist comments. The union subsequently grieved this matter and an arbitrator upheld the Company’s decision.

Picketing ImageThe split Court, in agreement with the Board, rationalized Mr. Runion’s comments by relying on case law that tolerates racist conduct by employees if done during a labor dispute and, significantly, is unaccompanied by any threats or violence. The Court, in deferring to the Board’s illogical precedent protecting this type of action, agreed that Mr. Runion’s comments were:

[N]ot violent in character, and they did not contain any overt or implied threats to replacement workers or their property. The statements were also unaccompanied by any threatening behavior or physical acts of intimidation by Runion towards the replacement workers in the vans.

The Court also rejected the Company’s reliance in terminating Mr. Runion “for cause” under Section 10(c) of the Act as it differentiated between “for cause” and “just cause” when dealing with a “prohibited reason” and “loss of employment stem[ming] directly from an unfair labor practice.” The Court deferred to the Board’s rationale by holding “that ‘Runion was discharged for a prohibited reason—the protected activity of engaging in picketing.’ Since Runion was discharged for a ‘prohibited reason,’ Cooper did not fire Runion ‘for cause’ under Section 10(c).” Notably, the Court also found that the Board had not abused its discretion by disregarding the arbitrator’s decision as the NLRB is free to overturn arbitrator rulings that are “clearly repugnant” to the Act.  Critically, the Court held that restraining picket line speech such as Mr. Runion’s would fly in the face of “well-established precedent giving greater protection to picket-line misconduct.”

The Court here had the opportunity to denounce racist comments such as Mr. Runion’s, but instead, decided to affirm this behavior when arising in the midst of a labor dispute. Employers, specifically in the Eighth Circuit, must somehow strike a balance between condemning racist comments made by its employees and respecting employees’ rights during lockouts and strikes. This task, however, has become much harder after this decision and I, like many others on the management-side bar, am in complete agreement with Judge C. Arlen Beam, the lone dissenter, when he stated, “the Board repeatedly broadens the protections for such repulsive, volatile, incendiary, and heinous activity time and again in cases such as these.”

In the end, it is readily admitted that protected activity such as picketing can lead to heated words, insults and, generally speaking, an apprehensive and tense environment. This industrial reality, however, should not give employees a pass on racist and discriminatory remarks. An employee can utilize their Section 7 rights and advocate for their side without spewing dangerous and bigoted comments at a specific group. This decision, like several others the Board has issued, downplays this commonsense notion and condones racist behavior as long as it occurs on a picket line. No employer should be forced to tolerate and employ individuals who engage in such behavior. Sadly, as attainable as this feat may seem (i.e., an employer should be able to terminate a racist employee), that is not the world we live in today.

Accordingly, employers should continue to seek legal counsel before disciplining employees for any conduct related to a labor dispute – picketing, lockouts, or strikes – or any action an employee takes concerning their terms and working conditions.


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