This week, the National Labor Relations Board (NLRB) exercised its discretion to decline jurisdiction in a case involving Northwestern University scholarship football players.  The union representation petition filed by the College Athletes Players Association was dismissed.

Over 25 amici briefs were filed with the NLRB for consideration in this case.  Clearly, the potential unionization of scholarship college athletes is a big deal and could have ramifications throughout the country.  Northwestern University, as well as several of the amici briefs argued the NLRB should exercise its discretion to decline jurisdiction over college athletics, because it would not accomplish the basic purposes of the National Labor Relations Act (Act).

In its analysis of the facts, the NLRB indicated although Northwestern University is an “employer” as defined by the Act, the other 13 colleges included in the Big Ten Conference are all state-run institutions over which the NLRB has no authority because they are not considered “employers” under the Act.  Additionally, the NLRB stated, “…the scholarship players do not fit into any analytical framework that the Board has used in cases involving other types of students or athletes…”  Therefore, the NLRB concluded asserting jurisdiction in this case would not serve to promote stability in labor relations.

The NLRB was very clear its decision to decline jurisdiction was strictly based on the facts before them, and any changes in the treatment of scholarship football players could outweigh the factors applicable to the current decision, and the issue could be reconsidered in the future.  Nice to see some common sense from the NLRB.

On December 16, 2014, the National Labor Relations Board (NLRB) issued a decision reexamining two significant bodies of case law concerning collective bargaining rights.  First, it reviewed the standard used to determine when the Board should decline jurisdiction over faculty employed at religious colleges and universities, and also reevaluated the standard used to determine when faculty members are managerial, and therefore not covered by the National Labor Relations Act (NLRA).

In Pacific Lutheran University and Service Employees International Union, Local 925, the NLRB issued a new standard.  The Board decided the NLRA,

“… permits jurisdiction over a unit of faculty members at an institution of higher learning unless the university or college demonstrates, as a threshold matter, that it holds itself out as providing a religious educational environment, and that it holds out the petitioned-for faculty member’s as performing a specific role in creating or maintaining the school’s religious educational environment.”

The Board held with respect to Pacific Lutheran University that although the university did meet the threshold requirement of holding itself out as creating a religious education environment, it did not consider the petitioned-for faculty members as performing a religious function in support of that environment.  Therefore, the Board had jurisdiction over those faculty members.

The Board also changed the analysis it applies when determining the managerial status of university faculty.   In determining whether or not a faculty member is actually or effectively “management,” the Board will examine faculty’s participation decision-making in the areas of: 1) academic programs, 2) enrollment management policies, 3) finances, 4) academic policies, and 5) personnel policies and decisions.  If faculty do not exercise control in these areas, then they do not exercise managerial authority on behalf of their employer, and can be included in a bargaining unit.

This decision greatly expands the ability of faculty at religious-affiliated colleges and universities to unionize.  This decision, in conjunction with the on-going movement of adjunct faculty petitioning to unionize, stands to change the future of labor relations on college campuses.   

 

The on-again, off-again National Labor Relations Board (NLRB) posting requirement for private sector employers is finally decided. Last week the NLRB decided to not seek Supreme Court review of the two U.S. Court of Appeals decisions invalidating its “Notice Posting Rule.” The NLRB had been trying to require private sector employers to post a notice about employee rights in the workplace since 2011. I have blogged about this issue on several occasions, because the NLRB deadline was repeatedly changed and postponed due to pending litigation.

Private sector employers can rest assured they are not legally required to post a notice about employee rights in the workplace, however they can do so voluntarily if they wish. The U.S. Court of Appeals for the District of Columbia stated, “[I]t is also without question that the Board is free to post the same message [that is on the poster at issue] on its website.” At the present time the workplace poster is still available on the NLRB website.

It is the choice of the private sector businesses to decide if they want to hang the “Employee Rights” poster or not. If you have already had it posted in your workplace, you can remove it if you wish.

Social media, whether it is Facebook, Twitter, YouTube or other social websites has become the new water cooler for companies. People comment on what they watched on TV last night, they vent when something goes wrong, or they celebrate when things go well. Social media is a quick and fast way for people to get information out to their friends, family and others. Social media and social media policies have been addressed by the National Labor Relations Board in many cases. The National Labor Relations Board has recognized that workers have a right to discuss work conditions freely and without fear of retribution, whether the discussion takes place in the office or on Facebook or other social media sites.

The Board’s rulings apply to almost all private sector employers. The rulings have outlined for companies it is illegal to adopt broad social media policies, for example which ban all “disrespectful” comments or posts which criticize the employer. A company’s policies can not discourage workers from exercising their rights to communicate with one another about improving wages, benefits, or working conditions. The Board has allowed employers to take action against workers who vent online where the posts are not considered concerted activity and are not about working conditions.

If your business has a social media policy, now is a good time to review it and make sure it is not overly broad and won’t run afoul of the National Labor Relations Act and interpretation by the National Labor Relations Board. If one of your employees vents about your business online, review the posts and evaluate whether or not the posts are about working conditions, or could be considered protected concerted activity prior to taking any negative action against the employee.

My twenty pound turkey will go into the oven at 9:00 tomorrow morning, followed by the corn bread and sausage stuffing with pecans. The cranberry chutney has been made already, and the side dishes and two kinds of pies will magically walk in the door tomorrow in the hands of family and friends. Thanksgiving is one of my favorite holidays. Great comfort food that is really pretty easy to make, family, friends, no gifts to purchase, football, and a nice fire in the fireplace. What is not to like about Thanksgiving!

WalMart is not sharing the same relaxed holiday with family and friends. Last week, they filed a motion with the NLRB, to stop employees from protesting on Black Friday, arguing the protests violate a federal law against picketing for more than 30 days, when a union is seeking recognition. United Food and Commercial Workers union claims the group organizing the protests, OUR Walmart (Organization United for Respect at Walmart) is an independent organization, and does not rely on the union for support. Whether or not a union is actively organizing at WalMart is a fact question to be determined by the NLRB….. and needed soon.

The NLRB however is unlikely to issue a decision before Thanksgiving according to a variety of media sources. In a statement last night, “the NLRB said it was continuing to investigate the Wal-Mart complaint. The legal issues- including questions about what constitutes picketing and whether the activity was aimed at gaining recognition for the union are complex.”

It appears by the time the NLRB figures this out, the Thanksgiving left-overs will be history and I will be trimming the tree for Christmas. 
 

Last week, the National Labor Relations Board (NLRB) launched a new webpage describing protected-concerted activity that all private sector employers should include on their Internet “favorite” list. The interactive webpage follows closely behind a model social media policy given a stamp of approval by the NLRB, which I blogged about in May. By all appearances the NLRB is trying to reach out via the Internet and establish a web presence to educate employers and employees.

If there was ever a question about whether the NLRB has jurisdiction in non-union workplaces, your answer can be found on the new interactive webpage. “Employees have the right to act together for their mutual aid and protection, even if they are not in a union.” Sounds pretty clear to me.

The new webpage displays a map of the United States which you can hover over with your cursor to see recent NLRB cases on concerted activity. Examples include a Minnesota case where the “…staff at an urgent care center sent an anonymous letter to the owner/doctor, asking him to reconsider a plan to immediately cut wages by 10% and suggesting alternate ways to save money. Within a month, two employees who wrote and edited the letter were fired. The Board found the employees’ activity was protected and ordered full backpay and offers of reinstatement.”

The webpage also provides a helpline number to call an NLRB Information Officer with questions about concerted activity, and indicates there are three important questions they will focus on;

    • Is the activity concerted?

    • Does it seek to benefit other employees?

    • Is it carried out in a way that causes it to lose protection? (This includes reckless or malicious behavior, such as sabotaging equipment, threatening violence, spreading lies about a product, or revealing trade secrets.)

Reviewing the new webpage and reading some of the cases decided by the NLRB will help employers see the direction the NLRB is taking in these concerted activity cases, and anticipate changes they can make to stay out of the line of fire. 
 

Today, the NLRB issued another Operations Management Memo concerning seven new social media cases. In six of the seven cases, Lafe Solomon, the Acting General Counsel found the employer’s policies and rules were overbroad. The six cases covered employer policies on a variety of social media issues including confidential information, non-public information, friending co-workers, seeking prior permission before posting on-line, legal matters, on-line tone, and contact with the media.

I have blogged about the myriad of social media cases decided by the NLRB in the past, and the general lack of clarity on how best to navigate social media waters. The most exciting news contained in the report today, is the inclusion of a Model Social Media Policy which was determined by the NLRB to be lawful.

The Model Social Media Policy is attached to the back of the Operations Memorandum, and is a must read for all employers and their legal counsel. At last we have a clearer picture on how to draft a social media policy which will withstand NLRB scrutiny, while offering protection for our employer clients.

On April 26, the NLRB Acting General Counsel Lafe Solomon issued a memo outlining in detail how regional offices were to implement new representation case procedures starting on Monday, April 30. Now, just 20 days later on May 15, Mr. Solomon withdrew the guidance he had sent to the regional offices. This action was in response to a U.S. District Court decision that the rule the NLRB adopted in December 2011 amending the procedures for determining whether a majority of employees wish to be represented by a labor organization, was adopted without the statutorily required quorum, and was therefore invalid.

The Court makes no determination on the legality of the rule adopted by the NLRB. The rule was struck down on a technicality. With all the litigation the NLRB has been involved in over the last year, you would think it could have easily avoided this problem by making sure it had a quorum prior to voting on the rule.

Better luck next time, NLRB!
 

The local Minneapolis office of the NLRB issued a decision last week, finding a Jimmy John’s franchisee illegally fired six employees for protected activity. This case is a follow-up to a blog I posted last fall about a failed union organizing campaign at Jimmy John’s, which resulted in a settlement agreement and a rerun election.

Chapter 2 of the sandwich saga involved the termination of six employees for posting 3,000 notices near ten Jimmy John’s sandwich shops owned by Milkin Enterprises. The employees had asked the employer to provide paid sick leave, and to change a sick leave policy that required employees to find replacements when they are ill and unable to work. Milkin Enterprises rejected the request, and the employees posted notices near ten sandwich shops warning customers their sandwiches could be made by ill employees. The postings included pictures of two identical sandwiches, and asked:

CAN’T TELL THE DIFFERENCE?
THAT’S TOO BAD BECAUSE JIMMY JOHN’S WORKERS DON’T
GET PAID SICK DAYS. SHOOT, WE CAN’T EVEN CALL IN SICK.

WE HOPE YOUR IMMUNE SYSTEM IS READY BECAUSE YOU’RE ABOUT TO TAKE THE SANDWICH TEST…

HELP JIMMY JOHN’S WORKERS WIN SICK DAYS
SUPPORT US ONLINE AT www.jimmyjohnsworkers.org

The Judge ruled the employees’ activity was protected activity under the NLRA, as it was part of an on-going labor dispute. The employer was ordered to reinstate the employees with full back-pay and any other lost benefits.

The employer’s case was argued byMichael Landrum and Mary Dobbins of Landrum Dobbins. Mary is an accomplished law school classmate of mine. She expressed her disappointment over the result stating, “We believe the conduct of the employees was egregious and should not be protected.“

Under these circumstances, the employees had no concern for the business enterprise, or the impact the postings may have on patrons of Jimmy John’s. Instead their only concern was improving their working conditions. This is a really tough spot for employers today. The NLRB pendulum has shifted so far in the direction of protecting employee speech, it leaves little room for employers to protect their businesses. The next step is a review by the full Board. I will keep you posted.
 

Last week, I blogged the deadline for employers to post the National Labor Relations Board poster on employee rights was fast approaching. Well, yesterday that changed again! The District of Columbia’s Circuit Court of Appeals temporarily enjoined the NLRB’s rule requiring the posting about employee rights. The Court of Appeals took this action, due to conflicting decisions which were issued at the district court level. Earlier this year, the D.C. District Court found the NLRB had the authority to issue the rule. However, last week the South Carolina District Court found the NLRB lacked the authority to issue the rule. Until this gets figured out in the courts, the requirement to post the NLRB poster on employee rights, is apparently on hold. I’ll let you know when a new deadline is set.