Header graphic for print

Labor & Collective Bargaining

Board Permits Questioning of Employee in Workplace Misconduct Investigation, Despite Protected Activity

An employee’s dishonesty during his employer’s lawful investigation into workplace complaints could serve as a basis for discipline of the employee, even if the conduct in question took place during the employee’s exercise of Section 7 rights under the National Labor Relations Act, the National Labor Relations Board has decided. Fresenius USA Manufacturing, Inc., 362 NLRB No. 130 (June 24, 2015)

The employee, an open and active union supporter, anonymously scribbled vulgar, offensive, and threatening statements on several union newsletters in a company break room to persuade his co-workers to support the union in a decertification election. During the ensuing investigation prompted by complaints about the statements by several female employees, the employee denied authorship. After the company confirmed the employee’s authorship, he was suspended and discharged for the statements and his dishonest denial of authorship.

The Board previously had decided the suspension and discharge were unlawful.

Looking at the case anew, however, the Board concluded that even assuming (without deciding) the employee’s handwritten statements were protected (the statements en­couraged warehouse employees to support the union in the decertification election), the company lawfully discharged the employee for dishonesty. The Board observed that “as part of a full and fair investigation, it may be appropriate for the employer to question an employee about factually valid claims of harassment and threats, even if that conduct took place during the employee’s exercise of Section 7 rights.” In addition, the Board noted the company had a legitimate business interest for investigating the handwritten comments and that its decision to investigate was consistent with its anti-harassment policy and with other federal statutes, including Title VII of the Civil Rights Act of 1964. The company was justified in expecting the employee to answer its questions truthfully. Although, the Board noted, in some circumstances an employee may have a legitimate basis for lying to his employer (for example, where an employer unlawfully interrogates an employee about his union organizing activity), this was not such a case.

The Board also concluded the company had conducted its investigation in a manner that was consistent with the purpose of its investigation, The company explained the reason for the investigation to the employee, the questioning was reasonably tailored to the purpose of the investigation, the company did not ask about his union views or any of his other union activities, and it focused exclusively on the handwritten comments alleged to be harassing and threatening.  Further, the Board found the investigation did not occur in a context of employer hostility to protected union activity.

The Board next found the employer met its burden of showing that it would have taken the same action even in the absence of the employee’s handwritten statements because discharge for dishonesty was consistent with discipline it had imposed for similar violations in the past. The Board noted that employers may satisfy their burden by demonstrating dishonesty was an independent reason for prior terminations, or that a practice of discipline for similar acts of dishonesty exists.

Employers questioning employees in connection with an investigation must have a legitimate business interest and conduct the investigation in a manner consistent with the purpose of the investigation. In addition, the questioning should be reasonably tailored to the purpose of the investigation and the interviewee should not be asked about union views or the union views of any coworker. The questioning should be focused exclusively on the particular conduct alleged to be problematic.

NLRB Has Cleared Up Cases after Supreme Court’s Invalidation of 2012 Recess Appointments

In Noel Canning v. NLRB, the United States Supreme Court concluded that President Barack Obama’s three recess appointments to the National Labor Relations Board in January 2012 (Sharon Block, Richard Griffin, and Terence Flynn) were invalid.  As a result, hundreds of Board decisions were invalidated. Now, Politico reports that an NLRB spokesperson said that there are no more cases invalidated by Noel Canning left for the Board to decide.

Not all of the original decisions resulted in issuance of a new decision. According to the Board’s website, some of the invalidated cases were closed, meaning that “the original Board decision resulted in some action that concluded the proceeding, such as settlement, withdrawal of charges, or full compliance.”

As predicted here, the Board reaffirmed almost all of the remanded decisions.

NLRB’s Notice of Bargaining Obligation Purports to Explain All

Amid the noise of the National Labor Relations Board’s new representation case rules, which became effective on April 14, 2015, the Board, without any fanfare, has begun issuing a new document, entitled “Notice of Bargaining Obligation,” as a companion piece accompanying the “Certification of Representative” the Board issues after a union prevails in a representation election.

The new one-page document purports to explain to a union and an employer the employer’s collective bargaining obligations after the employer has lost an NLRB-conducted representation election. Rife with legalese, it covers the full gamut of possibilities.

Here, in full, is what the document says:

“In the recent representation election, a labor organization received a majority of the valid votes cast. Except in unusual circumstances, unless the results of the election are subsequently set aside in a post-election proceeding, the employer’s legal obligation to refrain from unilaterally changing bargaining unit employees’ terms and conditions of employment begins on the date of the election.

“The employer is not precluded from changing bargaining unit employees’ terms and conditions during the pendency of post-election proceedings, as long as the employer (a) gives sufficient notice to the labor organization concerning the proposed change(s); (b) negotiates in good faith with the labor organization, upon request; and (c) good faith bargaining between the employer and the labor organization leads to agreement or overall lawful impasse.

“This is so even if the employer, or some other party, files objections to the election pursuant to Section 102.69 of the Rules and Regulations of the National Labor Relations Board (the Board). If the objections are later overruled and the labor organization is certified as the employees’ collective-bargaining representative, the employer’s obligation to refrain from making unilateral changes to bargaining unit employees’ terms and conditions of employment begins on the date of the election, not on the date of the subsequent decision by the Board or court. Specifically, the Board has held that, absent exceptional circumstances, (footnote omitted) an employer acts at its peril in making changes in wages, hours, or other terms and conditions of employment during the period while objections are pending and the final determination about certification of the labor organization has not yet been made.

“It is important that all parties be aware of the potential liabilities if the employer unilaterally alters bargaining unit employees’ terms and conditions of employment during the pendency of post-election proceedings. Thus, typically, if an employer makes post-election changes in employees’ wages, hours, or other terms and conditions of employment without notice to or consultation with the labor organization that is ultimately certified as the employees’ collective-bargaining representative, it violates Section 8(a)(1) and (5) of the. National Labor Relations Act since such changes have the effect of undermining the labor organization’s status as the statutory representative of the employees. This is so even if the changes were motivated by sound business considerations and not for the purpose of undermining the labor organization. As a remedy, the employer could be required to: 1) restore the status quo ante; 2) bargain, upon request, with the labor organization with respect to these changes; and 3) compensate employees, with interest, for monetary losses resulting from the unilateral implementation of these changes, until the employer bargains in good faith with the labor organization, upon request, or bargains to overall lawful impasse.”

This new document appears to be the latest Board move to increase its visibility by being pro-active — in this case, by counseling unions that they have the right to file unfair labor practice charges against employers that engage in any of the prohibited conduct described in the Notice. Here are highlights of the Board’s efforts:

  • In 2012, the Board launched a webpage devoted to protected concerted activity. NLRB Chairman Mark Gaston Pearce noted at the time, “We think the right to engage in protected concerted activity is one of the best kept secrets of the National Labor Relations Act. . . . Our hope is that other workers will see themselves in the cases we’ve selected and understand that they do have strength in numbers.” (This followed the rejection earlier that year by a federal appeals court in Washington of another attempt by the Board — the NLRB’s 2011 workplace poster regulations. The NLRB asserted the poster was necessary because of the public’s lack of knowledge and understanding of the NLRA.)
  • In 2013, the Agency began making available to the public a mobile app, and shortly thereafter debuted its protected concerted activity webpage, informing employees that “[e]mployees have the right to act together for their mutual aid and protection, even if they are not in a union.”
  • Earlier this year, the NLRB began tweeting exhortations tonon-union employees to utilize the Agency’s services and notifications about the broad jurisdictional reach of the NLRA.

The Notice of Bargaining Obligation underscores the multi-faceted nature of and pitfalls associated with an employer’s bargaining obligation after the employer loses an NLRB election. Non-union employers wishing to remain union-free, and therefore, avoid a complicated bargaining obligation, should implement a preventive plan today. (See our article, Preparing for Labor Boards Quickie Election Rule, for an example of such a plan.) Newly unionized employers should consult labor counsel before making any changes to employees’ terms and conditions of employment or entering into collective bargaining with their employees’ newly certified union.

NLRB Expands Remedies for Employer’s Violation of Employee’s Weingarten Rights

The NLRB has issued a decision allowing new remedies — reinstatement and back pay (“make-whole relief”) — for certain violations of an employee’s “Weingarten” rights. E.I. Dupont de Nemours & United Steel Workers Local 6992, 362 NLRB No. 98 (May 29, 2015).

In NLRB v. J. Weingarten, Inc., 420 U.S. 251 (1975), the U.S. Supreme Court held a bargaining unit employee is entitled to union representation, on request, during an investigatory interview the employee reasonably believes might result in disciplinary action. When an employee requests representation, the employer may deny the request and conduct its investigation without interviewing the employee. However, if the employer proceeds with the interview, it must allow a union representative to represent the employee during the interview.

In Dupont, employee Smith was involved in a workplace accident in May, 2012. Smith was initially questioned by his supervisor and the company’s medical personnel about the accident. Smith did not request union representation during these interviews. When Smith was later called into an investigatory interview, he requested a union representative. His request was denied, but the company nevertheless questioned him about the accident. Company managers interviewed Smith several days later, again without union representation, and in a third interview with a union representative present. Dupont ultimately terminated his employment for providing false or incomplete information during the investigation based on his inconsistent explanation of the accident.

The Board’s Administrative Law Judge decided the employer unlawfully had denied Smith’s request for union representation, but it denied his request to be reinstated with back pay. The ALJ reasoned that Smith had not been discharged for asserting his Weingarten rights and his discharge was for cause (dishonesty in giving inconsistent responses).

Although the three-member NLRB panel reviewing the ALJ’s decision agreed the employer unlawfully refused Smith’s request for union representation while it went ahead with its questioning, two of the three also found the case presented an “issue of first impression . . . whether to provide make-whole relief to an employee discharged for misconduct that occurred during an unlawful interview.” Those members also created a new standard to be applied where the misconduct causing termination is precipitated by and occurs during an unlawful interview following a denial of Weingarten representation. In their opinion, make-whole relief is appropriate where: (1) an employer, in discharging an employee, relies at least in part on the employee’s misconduct during an unlawful interview; and (2) the employer is unable to show it would have discharged the employee absent that purported misconduct.

Because Smith answered questions in both lawful and unlawful interviews, the NLRB remanded the case to the ALJ to make specific findings regarding which interviews were the source of the inconsistent statements the employer relied on and whether the employer could demonstrate it would have discharged Smith regardless of any conduct during the unlawful interviews.

Given the NLRB’s activist approach, it was only a matter of time before it expands Weingarten rights. Unionized employers should be extra cautious about denying employees these rights, and where an employee declines representation during an investigatory interview, documenting that decision. This may not be the last expansion of Weingarten rights. Many commentators believe the Board will revisit Epilepsy Foundation, 331 NLRB 676 (2000), and again apply Weingarten to non-union employees.

Pro-Union Worker Fired For Refusing Drug Test, Not For Anti-Union Reasons, NLRB ALJ Finds

In a strongly worded opinion, a National Labor Relations Board Administrative Law Judge sustained an employee’s discharge for refusing to drug test against an allegation of unlawful discrimination because the employee had engaged in union activity. Ozburn-Hessey Logistics, LLC, JD (ATL) 08-15 (NLRB ALJ April 28, 2015). The Judge repeatedly refused to credit the employee’s account of his employer’s attempts to test him.  For more on this development, click here.

NLRB Poised to Change Rule for Unionizing Temporary Workers

Setting the stage for another likely change in Board law, the NLRB has granted review over a Regional Director’s dismissal of an election petition, where the Union sought to represent in the same bargaining unit a contractor’s own employees and temporary employees provided to the contractor by a staffing company.     In its May 18, 2015, announcement on this hot-button issue, the Board followed its now-familiar pattern of inviting interested parties to file amicus briefs, this time over the continued applicability of the Board’s 2004 decision in Oakwood Care Center, 343 NLRB 659, on which the Regional Director relied.

In Miller & Anderson, Sheet Metal Workers Local 19 petitioned the NLRB to represent all sheet metal workers employed in in a three-employer, Franklin County, PA, unit, consisting of: 1) employees of Miller & Anderson (M&A), the host employer, 2) employees employed by Tradesmen International, a temporary service providing workers to M&A, and 3) employees jointly employed by M&A and Tradesmen.

Under Board precedent in Oakwood Care Center, a bargaining unit consisting of employees employed solely by a host employer (or, presumably, those employed by a temporary service alone) and those jointly employed by the host employer and the temporary service is appropriate only if all the employers involved consent to such multi-employer bargaining – assuming the union wins the election. M&A and Tradesmen did not consent to the conduct of an election in a multi-employer voting unit, or to multi-employer bargaining in the event the Union prevailed in the election. Thus, in accordance with Oakwood Care Center an NLRB Regional Director dismissed the petition. Local 19, however, sought review by the NLRB. Three years later, the Board has granted the union’s request to examine the “applicability of Oakwood Care Center. 

The competing policies implicated by such cases and which culminated in Oakwood Care Center are familiar, and have been resolved by the Board in dueling decisions in a number of cases.   From the Union’s perspective, the current Board rule does not adequately reflect the reality of the modern workplace, in which a significant share of the American workforce is working in “contingent and alternative employment arrangements.”   In its view, the rule stands as an unwelcome impediment to union organization. The Union would have the Board return to the rule articulated in M.B. Sturgis, 331 NLRB 1298 (2000), in which the Board held that separating “regular” employees (those employed solely by the host or “user” employer) from the “temporaries” (who may share the same classifications, skills, duties and supervision) creates an “artificial division” between such employees not required or justified by the statute. In Sturgis, the Board found that all employees doing work for the host employer – regular and temporaries – did not constitute a multi-employer unit requiring the employers’ consent.

Subsequently, in Oakwood Care Center, however, the Board majority reversed the position it had taken in M.B. Sturgis, holding that certifying a union as representative of a bargaining unit consisting of both “regular” employees and “temporaries,” absent the consent of the employers, would be “inconsistent with the plain meaning of ‘employer unit’ in the Act.”  The Union in M&A would have the current Board adopt the reasoning of the two Board members who dissented in Oakwood Care Center, who defended the Sturgis decision.   The dissenters argued all employees are on the site work for the host employer as part of a “common enterprise,” so it would be appropriate for the joint employees to be combined with the employer’s sole employees in a “joint bargaining unit.”

Until the Board decides Miller & Anderson, host or “user” employers of the services of temporary employees should assess their posture with respect to such relationships, and the implications of the Board’s possible return to its M.B. Sturgis standard.


Americans Divided On Decline in Union Membership, According to Opinion Poll

A new poll finds that Americans have mixed views on unions and the impact the decline in union membership has had on workers.

On April 27, 2015, the Pew Research Center, described as “a nonpartisan fact tank that informs the public about the issues, attitudes and trends shaping America and the world,” released results of its recent survey of 1,500 adults nationwide from varying demographic backgrounds between March 25th and 29th of numerous questions regarding attitudes about unions and workers’ rights to unionize.

Although the number of unionized workers in the United States has decreased during the past 30 years, a greater number of those polled hold a favorable view of unions (48%) than unfavorable (39%).  Asked about the long-term decrease in union membership, 45% deemed it “mostly bad,” while 43% believed it was “mostly good.”  However, in what appears to be a conflicting result, 52% of those polled thought the long-term decrease in union membership had a “mostly bad” effect for workers, while 40% believed it had a “mostly good” effect.

Support for the right of workers to unionize varies considerably depending on the industry:

  • factory and manufacturing workers – 82%
  • public transportation workers – 74%
  • police and firefighters – 72%
  • public school teachers – 71%
  • private sector supermarket and retail sales workers – 68%
  • fast-food workers – 62%

Not surprisingly, the survey disclosed a stark difference in how Democrats and Republicans view unions.  While 59% of Democrats believed the decline in union representation was “mostly bad” for America, 62% of Republicans were of the opinion the decline was “mostly good.”

Similar variations in opinion were revealed across various demographics.  As between men and women, the numbers were close, with 48% of men and 47% of women having favorable views of labor organizations.  However, 60% of blacks polled, “who are more likely than other racial and ethnic groups to be union members” (according to the survey), had favorable views of unions, while only 49% of Hispanics and 45% of whites did.  The poll also showed that lower income households had a more favorable view of unions than higher income households: 54% of households earning less than $30,000 viewed unions favorably as compared to 45% of households earning $75,000 or more.  The South was the geographic region with the least favorable view of unions. Only 41% of people polled there viewed unions favorably. A majority (55%) of Midwesterners surveyed held favorable views of unions, followed by 50% of those in the Northeast and 49% of those in the West.

The poll results suggest that despite a steady decline in union membership over the last three decades, in general, Americans favor unions, at least in specific industries, but, according to the report, the degree of “favorable opinion can be sharply divided by demographic indicators such as ethnicity, income level, political affiliation and geography.”

NLRB Finds Union Improperly Interfered with Decertification Election

A union “interfere(d) with employee free choice” during the run-up to an NLRB election to decertify the union by seeking the discharge of the decertification Petitioner for alleged non-payment of dues and fees to the union, the National Labor Relations Board has held in an unpublished opinion. Bio-Medical Applications of New Jersey, Inc., Case 22-RD-114233 (Apr. 29, 2015).

According to the NLRB, Local 1199J, AFSCME falsely claimed to the employer and other bargaining unit voters that the Petitioner had not paid initiation fees and dues under the union contract, and then failed to inform the voters of its mistake after it dropped its demand for the employee’s discharge. When the union narrowly won the decertification election (15-13), objections were filed to the union’s conduct.

The Board found the union had sent the decertification petitioner letters on successive days claiming he owed $666.30 in unpaid dues and initiation fees, and asserting that under the collective bargaining agreement he could be discharged if he failed to pay. The letters did not explain how the union calculated this amount, but it is undisputed that it was inaccurate. The union also posted one of these letters on the employer’s premises in the employee lunchroom.  The union sent a letter to the employer, as well, requesting that the decertification petitioner be discharged for this non-payment. Two weeks later, the union Vice President met with the bargaining unit employees/voters and told them of the union’s demand to the have the decertification petitioner terminated. However, after the employer challenged the union’s discharge request, the union withdrew its request. It did not inform prospective voters (other than the decertification petitioner) that it had dropped its demand.

Applying its nine-factor test from Cedars-Sinai Medical Center, 342 NLRB 596 (2004) to evaluate whether the union’s conduct during the critical pre-election period interfered with employees’ freedom of choice in the election, the Board held the union’s conduct was objectionable and interfered with employee freedom of choice. Although the union had the right to seek the decertification petitioner’s discharge under the CBA, its claim was inaccurate, and although the union withdrew its demand for his discharge, that fact was not communicated to other bargaining-unit employees.

The Board infrequently finds that a union engaged in unlawful conduct. However, in this case, “[g]iven the severity of this incident, the extent of dissemination, the closeness of the election, and the Union’s failure to effectively disseminate its withdrawal of the threat,” the Board set aside the first election and directed a rerun.

Federal Contractors Must Continue to Post Notice of Labor Rights, Court Holds

A federal district court in Washington, D.C. has rejected a constitutional challenge by the National Association of Manufacturers and Virginia Manufacturers Association to President Barack Obama’s 2010 Executive Order requiring certain federal contractors to post a “Notification of Employee Rights under Federal Labor Laws” on the basis that it violates the First Amendment right of federal contractors to “refrain from speaking.” Nat’l Ass’n of Mfrs. v. Perez, No. 1:13-cv-01998 (D.D.C. May 7, 2015). The Poster notifies contractor employees of their right to organize and other provisions of the National Labor Relations Act (NLRA).  For more about this decision, click here.

Court Refuses to Restrain New NLRB Election Rules

A federal court in Washington, D.C. has refused to issue a temporary restraining order blocking the National Labor Relations Board’s (“NLRB’s”) new election rules.

On April 15, the day after the new rules went into effect, a union seeking to represent carpenters and laborers working for Baker DC LLC in the Washington, D.C. area filed an election petition with the NLRB. Baker filed a lawsuit to vacate and set aside the rules and asked the District Court to issue a temporary restraining order to halt the representation proceedings. Baker alleged that the NLRB exceeded its statutory authority as well as the Administrative Procedure Act in promulgating the rules. Baker also alleged the new rules, particularly the mandatory posting of a notice upon the receipt of a petition, violated the company’s right to refrain from certain speech and thus violated its due process rights. A few days after the complaint was filed, an amended complaint was filed on behalf of three employees, as well as Baker, alleging that the rules’ new requirement that Baker disclose certain employee personal contact information jeopardized the employees’ privacy rights.

The court refused to restrain the NLRB from proceeding under the new rules. It noted first that the company’s motion addressed only the NLRB’s notice posting requirement and the disclosure of the employee contact information. With respect to both mandates, the court found there was no showing of irreparable harm, an absolute requirement for a temporary restraining order. The court noted that there was nothing in the NLRB rules prohibiting the company from engaging in any speech it desired while the NLRB case proceeded. With respect to the employee contact information, the court noted that not only was the risk to the employees’ privacy merely speculative, but the NLRB’s rules prohibited the union from using the employee information for any purpose other than a representation proceeding. Further, in agreement with the NLRB, the court observed that even if the union prevailed in an election under the new rules, the employer could simply refuse to bargain, forcing the union to file an unfair labor practice charge and enabling Baker to contest in agency complaint proceedings the union’s representative status based on the allegedly flawed election rules, ultimately obtaining judicial review.

This is one of a number of cases challenging the NLRB election rules. The cases in Texas and in Washington, D.C. did not ask for restraining orders and will be decided on the merits of each case. In the meantime, the NLRB “quickie election” rules remain in effect.