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Labor & Collective Bargaining

NLRB Expands Scope of Union Representatives’ Permissible Conduct during Investigatory Interviews under Weingarten

In a 2-to-1 decision, a three-member panel of the National Labor Relations Board has held it was unlawful for an employer to threaten a union steward with suspension for showing an employee, during the employer’s investigative interview about a violation of company procedure, the steward’s answer to a question asked by the interviewer, which was written in the steward’s notebook, so that the employee could read it to the interviewer. The assistance provided by the steward here was consistent with the U.S. Supreme Court’s decision in NLRB v. J. Weingarten, 420 U.S. 251 (1975), the National Labor Relations Board has held. Howard Industries, Inc., 362 NLRB No. 35 (Mar. 23, 2015).

The employer’s HR Generalist was questioning the employee about the violation of procedure when the steward raised a notebook in front of the employee and drew the employee’s attention to a section of the notebook which related to the interviewer’s question. The section contained his transcript of the employee’s statement to the steward in which the employee had asserted he lacked training in the procedure.

As the employee began to read what was written in the notebook, the interviewer directed the steward to close the notebook. The steward refused, stating it was being used “as a tool” to represent the employee. The interviewer then told the steward to “get the notebook out of there before I suspend you.” The steward complied.

The NLRB concluded the employer had violated the NLRA by threatening to suspend the steward. Under Weingarten, a union-represented employee may request the presence of a union representative at an investigatory interview the employee reasonably believes may result in disciplinary action. If a representative participating in the interview is acting within the ambit of Weingarten, providing proper assistance, the representative’s activity is protected under the NLRA. However, the precise role of union representatives in investigatory interviews under Weingarten is not well-defined and has been the subject of several NLRB decisions.

In Howard Industries, the Board majority concluded the steward could use the notebook to “remind[] [the employee] of his lack-of-training defense.”   The NLRB held the steward’s conduct was protected under the NLRA and the interviewer’s threat of suspension was unlawful.

In a dissenting opinion, Member Philip Miscimarra – quoting from the NLRB’s brief in Weingarten – said that while a union representative may provide assistance during an investigatory interview, the employer “is free to insist that he is only interested, at that time, in hearing the employee’s own account of the matter under investigation.” As the steward did not explain the purpose of the notebook, Member Miscimarra said it reasonably appeared to the interviewer that the employee was reading from a script.

While the Board’s decision does not go so far as to permit union representatives to script employee answers during investigatory interviews, employers need to proceed with caution. Interviewers should specifically state that responses should be in the employee’s own words and that a scripted response will not be accepted. Also, if the steward wishes to remind the employee, orally or in writing, of additional facts or explanations, he may do so, but the steward does not have to be permitted to answer the question for the employee. Of course, the employee’s failure to mention a significant defense to his actions until he is prompted by the steward likely will have a negative effect on his credibility in the eyes of the employer.

NLRB’s Renewed Focus On Immigration Issues Affects Complaint Cases

The General Counsel of the National Labor Relations Board has instructed agency regional directors and other officials charged with investigating unfair labor practice charges to consider whether the immigration status of affected employees may affect the Board’s ability to proceed in litigation and fashion effective remedies.

On February 27, 2015, General Counsel Robert F. Griffin, Jr., issued a Memorandum (GC-15-03) providing updated procedures to be applied when immigration status issues may affect NLRB investigations and proceedings. The new procedures require Regions to contact the NLRB’s Division of Operations-Management at any point in the proceedings if they believe that someone’s immigration status may impair the Region’s ability to litigate or remedy a potential unfair labor practice. Operations-Management will assist Regions with possible interagency collaboration, consult on possible remedies, and provide NLRB-wide coordination.

Undocumented workers are “employees” within the meaning of the National Labor Relations Act, and their immigration status is not relevant to an unfair labor practice investigation. Consequently, Regions will not investigate nor determine a worker’s immigration status during such an investigation. However, action taken by an employer to comply with immigration laws may be a defense to an alleged violation of the NLRA and a Region may investigate appropriate facts bearing on the employer’s motivation.

The Memorandum counsels that interagency coordination may be appropriate if immigration status could impact a charge’s investigation or remedy. The potential discriminatee or witness may be eligible for a U or T visa, or deferred action from or assistance by the Departments of Justice or Homeland Security to permit an investigation to continue or for an appropriate remedy to be determined and enforced.

While undocumented workers are not eligible for back pay and reinstatement under the NLRA, the General Counsel urged the Regions to consider alternative remedies such as enhanced notice requirements, training of employees and supervisors regarding employee rights and employer responsibilities under the law, a bargaining order, union access to employee contact information, reimbursement of organizing or bargaining expenses, and other appropriate remedies. Further, Regions are encouraged to seek a Formal Board Settlement, which is a Board Order (and is often accompanied by a federal court judgment) in connection with which the General Counsel can seek judicial relief in the event of non-compliance with the settlement by the employer.

Enhanced remedies in the event of a violation of the NLRA are only one of the negative implications of an inaccurate initial determination. Please consult experienced counsel if you have any questions.

House Joins Senate in Symbolic ‘Disapproval’ of Quickie Election Rule; Presidential Veto All but Certain

The House of Representatives voted 232-186 on March 19th to disapprove the new NLRB election rules slated to go into effect on April 14th. The Senate passed a similar resolution of disapproval on March 4th.

Under the Congressional Review Act, Congress has the authority to “disapprove” (and thus nullify) an agency rule. However, as with any bill passed by Congress, resolutions of disapproval must be signed by the President to be enacted. The President has the authority to veto the resolution.  For more on disapproval resolutions, see our post, “Congress Reviews NLRB Quickie Election Rule.”

Although President Barack Obama has not taken action as of this writing, it is virtually certain that he will veto the measure. Given the almost-party line plurality of the votes in Congress, it appears that that resolution’s proponents would not muster the two-thirds vote necessary to override any veto.

There are two pending court challenges to the Board’s rule, filed by several business groups; one in federal district court in Washington D.C., and the other in federal court for the Western District of Texas. However, neither court has indicated whether hearings will be held or a decision will be issued before the rules become effective.

Thus, it appears the new rules will go into effect as scheduled.

The NLRB is scheduling outreach events for labor practitioners in the weeks prior to the rules’ effective date. We will monitor and report updates as warranted. In addition, Jackson Lewis will be offering a complimentary webinar about the new rules after April 14, as well as in-person seminars across the country on the rules and other recent NLRB developments.

Under What Circumstances Can An Employer Restrict Employees from Using Its Email System? The Answer Will Have to Wait

In Purple Communications, the National Labor Relations Board held that, absent “special circumstances” justifying specific restrictions, federal labor law requires employers to permit employees who have been provided access to their employer’s email system to use that system for union and other protected communications on non-working time. Purple Communications, Inc. 361 NLRB No. 126 (Dec. 11, 2014).

The employer’s rule in Purple Communications did not grant such access explicitly. However, instead of finding the rule violated the National Labor Relations Act, the NLRB remanded the case to its Administrative Law Judge to permit the employer to present evidence of special circumstances justifying the rule’s access restrictions. This set the stage for a decision explaining what the Board meant by “special circumstances.”

After the remand, however, the employer notified the ALJ that it would not contend that special circumstances existed to justify restrictions in its policy. Therefore, the Board likely will issue an Order finding the employer’s policy violated the NLRA; and, more important, the ALJ will not issue a supplemental decision providing insight into the meaning of special circumstances. Additional guidance on what constitutes special circumstances in the email policy context will have to wait until the next email case reaches the Board.

Congressmen Ask NLRB General Counsel to Explain ‘Joint-Employer’ Comments

Three Republican Congressmen – Senators Lamar Alexander (R-Tenn.) and Ron Johnson (R-Wis.), and Representative John Kline (R-Minn.) — have requested National Labor Relations Board General Counsel Richard Griffin to explain joint-employer comments he made at an October 24, 2014 labor conference urging the NLRB to adopt a more liberal joint-employer standard. Griffin has issued several unfair labor practice complaints against a national food chain, stating, “in that area we have a problem, legally, for our theory to hold franchisors as joint-employers.”

In a letter, the legislators complained to Griffin that he “appear[s] to be pursuing joint-employer cases knowing your legal theory is problematic.”  They note that two months after he made his comments, the General Counsel issued several complaints against a national franchisor, claiming it is a joint-employer.

They also asked Griffin to answer a number of questions and to produce several documents:

  1. Did any developments occur in the law between your comments on October 24, 2014, and the filing of complaints on December 19, 2014, that named a franchisor as a joint-employer?
  2. If not, please explain your comments made at the October 24, 2014, labor conference.
  3. Produce all documents and communications between the Office of General Counsel and the Board referring or relating to the joint-employer standard from November 4, 2013, to present.
  4. Produce all documents and communications between the Office of General Counsel and any other federal agency about the joint-employer standard from November 4, 2013, to present.

The authors set a deadline of March 19, 2015, to provide the answers to those questions.

As we have previously written, the Board has before it the case of Browning Ferris Industries, No. 32-RC-109684, in which it solicited briefs from non-parties. Many expect the Board to change its analysis for determining whether two entities are joint-employers, and therefore, are liable for each other’s unlawful conduct under the National Labor Relations Act.

The General Counsel is urging the Board to abandon the current “direct control” joint-employer standard and replace it with a “totality of the circumstances” test. Direct control requires that a putative joint-employer have control over terms and conditions of employment of the subject employees. This includes hiring and firing, setting work hours, determining compensation and benefits, and exercising day-to-day supervision. Instead, the General Counsel has urged that the Board consider an easier standard to meet – one based on whether an alleged joint-employer exercises either direct or indirect control over the subject employees who work for another employer, and to consider even whether the alleged joint-employer has “unexercised potential to control working conditions” of those employees.

We will keep you apprised of additional developments in this important area.

Handbook Rules Guidance Expected from NLRB General Counsel

National Labor Relations Board General Counsel Richard Griffin said he intends to issue a guidance memorandum on employee handbook rules in March. This could be a helpful step for employers seeking guidance on what constitutes a lawful policy under the NLRA.

Speaking at the February Midwinter Meeting of the American Bar Association Section of Labor and Employment Law Committee on the Development of the Law under the NLRA. Griffin also noted he intends to include, with the memorandum, several rules he previously has determined are lawful. He did not disclose what subjects the sample rules will cover.

Although the General Counsel plans to issue a set of “model” rules, they only will be “facially valid”. Under Lutheran Heritage Village – Livonia, 343 NLRB 646 (2004), a rule or policy violates the National Labor Relations Act if: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule is promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights. Even a rule that is valid on its face, therefore, can be applied improperly, resulting in a violation.

Most of the litigation at the NLRB over employer rules and policies has focused on the “reasonably construe” test, and how the rule or policy has been applied to an employer’s employees is a factor the Board may consider in determining whether employees would reasonably construe the language to prohibit Section 7 activity. Thus, if it is shown by an opposing party that the otherwise valid rule has been applied in a way to prohibit or limit Section 7 activity, the rule – even a model rule approved by the General Counsel — still may be found unlawful under the NLRA.

Education for all who are expected to enforce rules and policies about the scope of the rule’s prohibitions will still be critical.

NLRB General Counsel Fails to Extend Weingarten Rights to Search of Company Vehicles

A unionized employer may search a company vehicle without affording the employee who uses the vehicle an opportunity to exercise his “Weingarten rights” to have a union representative present during the search, according to an Advice Memorandum from the Office of the General Counsel of the National Labor Relations Board (“NLRB”). Southwestern Bell Telephone Company, Case 14-CA-141000 (issued Feb. 6, 2015; released publicly Feb. 20, 2015).

Southwestern Bell discovered a small bag of marijuana beneath chairs in which an employee and her co-worker had been sitting in on company premises. Southwestern Bell interviewed the two employees about the marijuana that was discovered in the facility. At the employee’s request, and pursuant to the U.S. Supreme Court’s decision in NLRB v. Weingarten, 420 U.S. 251 (1975), the employee was permitted to have a union representative present during the interview. (Under Weingarten, a union employee may request the presence of a union representative at an investigatory interview that the employee reasonably believes may result in disciplinary action.) Following the interview, and while the employee and her union representative were at lunch, Southwestern Bell searched the employee’s company vehicle. Southwestern Bell did not inform the employee or the union of its intent to search the company vehicle. During the search, Southwestern Bell discovered a case containing CDs and pornographic DVDs, but did not find any drugs or drug paraphernalia.

Southwestern Bell then conducted a second interview of the employee, in the presence of the union representative. The employee admitted the CD case was hers, but denied knowledge of the pornographic DVDs. Southwestern Bell suspended the employee on suspicion of possessing marijuana on company premises, but later rescinded the suspension for lack of evidence. Upon the employee’s return to work following her suspension, Southwestern Bell issued her a “disciplinary written reminder” relating to the employee’s possession of pornographic DVDs.

The Division of Advice concluded that Southwestern Bell did not violate the National Labor Relations Act when it searched the company vehicle outside the presence of the employee and her union representative. In its Advice Memorandum, the General Counsel noted that while under Weingarten an employee is entitled to a union representative during an “investigatory interview,” Southwestern Bell’s “search of a company-owned vehicle was not in itself an investigatory interview, and was not a ‘continuation’ of the prior investigatory interview.” Thus, “[b]ecause [Southwestern Bell] asked nothing of the Employee, the Employee had no need for a Union representative’s assistance.”

The General Counsel’s Advice Memorandum permits searches of company vehicles outside the presence of the employee who uses the vehicle and the employee’s union representative. Where, however, the employer asks questions of an employee during the search of a company-owned vehicle such questioning may implicate an employee’s Weingarten rights. In order to avoid implicating an employee’s Weingarten rights, employers should separate their investigatory searches of company property from their investigatory questioning of employees.

NLRB Division of Advice on Making Unilateral Changes when Employer and Union are at Negotiations Stalemate

A unionized employer did not violate the National Labor Relations Act when, after reaching a bargaining impasse with the union, it unilaterally issued a health care proposal that gave it broad discretion to make unilateral changes to certain parts of the health care plan. According to a Memorandum issued by the National Labor Relations Board’s Division of Advice, the move did not come within the McClatchy Newspapers, Inc., 321 NLRB 1386 (1996), exception to the NLRB’s rule prohibiting employers from unilaterally implementing, after reaching impasse, proposals that give the employer broad discretionary powers. Here, after implementing the new plan, the employer agreed not to make any changes or to exercise any discretion it had under the plan without first bargaining with the union. Columbia Sussex Corp. d/b/a Anchorage Hilton, Case 19-CA-127945 (dated Dec. 19, 2014, issued on Jan. 30, 2015).

Sometimes parties in collective bargaining reach “impasse” – a stalemate in negotiations. When that occurs, an employer has the legal right to implement its pre-impasse proposals, as long as they do not give the employer broad discretionary powers to unilaterally change employee pay. The McClatchy exception has been expanded to include other mandatory subjects of bargaining, such as health insurance.

In Anchorage Hilton, when the parties reached impasse, the employer told the union it was going to implement the following health care proposal in approximately six weeks:

Employees covered by this Agreement shall participate in the Columbia Sussex Group Health Plan in accordance with the provisions of such plan, subject to any modifications or changes applicable to other participating employees that may be adopted by the Plan Administrator. . . . (Emphasis added.)

Columbia Sussex Management, whose officers were substantially the same as the employer’s, administered the plan. The plan documents also gave the plan administrator broad discretionary authority:

The Plan Administrator shall perform its duties as the Plan Administrator and in its sole discretion, shall determine appropriate courses of action in light of the reason and purpose for which the Plan is established and maintained. In particular, the Plan Administrator shall have full and sole discretionary authority to interpret all plan documents, including this SPD, and make all interpretive and factual determinations as to whether any individual is entitled to receive any benefit under the terms of this Plan. Any construction of the terms of any plan document and any determination of fact adopted by the Plan Administrator shall be final and legally binding on all parties . . . . (Emphasis added.)

However, the employer also told the union that it would not make any unilateral changes to the plan without first giving the union an opportunity to bargain. Indeed, the employer did not make any changes to the plan, or exercise any discretion reserved to it under the plan, since its implementation.

The Division said the “mere announcement” of the changes is not a violation of the NLRA; rather, it is the implementation of the changes that may trigger a violation.

For union-free employers, this decision shows how having a union can interfere with a company’s ability to implement changes, including those that are critical to the long-term viability of the business. For unionized employers, it underscores the importance of carefully planning for bargaining, particularly where discretionary proposals granting the employer broad discretion are involved.




Congress Reviews NLRB Quickie Election Rule

In response to a move by House and Senate Republicans to block the NLRB’s “quickie election” rules, scheduled to take effect on April 14, 2015, National Labor Relations Board Chairman Mark G. Pearce issued the following statement on February 9:

“The Board remains committed to the critical work of this agency and fully carrying out the law . . . As Congress considers this resolution, this Agency will continue productive conversations about the rule ensuring that our processes help fulfill the promise of the National Labor Relations Act.

“However, it is undeniable that modernizing and streamlining the representation-case process is far overdue. Both businesses and workers deserve a process that is effective, fair, and free of unnecessary delays, which is exactly what this rule strives to accomplish.”

The legislators are challenging the new rule under the Congressional Review Act, enacted in 1996.  According to the Center for Effective Government, the CRA allows Congress to review “major” rules, like the quickie election rule, issued by federal agencies before the rules take effect.  Under the CRA, if a member of Congress finds an agency rule objectionable, he can introduce a “resolution of disapproval.”  The resolution is put to a vote in both Houses of Congress, and if it passes, goes to the President for action.  The President retains the right to veto the measure, however.  According to a January 19, 2015, article in The Hill, “GOP Finds its Secret Weapon,” “[l]awmakers have only struck down one rule under the Congressional Review Act in 43 attempts, according to the Government Accountability Office. In 2001, Republicans repealed the Clinton administration’s controversial ergonomics rule aimed at curbing workplace injuries.” (The Center for Effective Government claims there have been 97 joint resolutions of disapproval.)

The President is expected to veto the resolution (S.J.Res.8) if it passes.  It also is unlikely that Congress will be able to muster the two-thirds vote necessary to override that veto.


NLRB Begins New “Educational” Campaign in Run-Up to Quickie Election Rule

In a series of tweets, the National Labor Relations Board is using social media in an attempt to increase  concerted and union activity under the NLRA.

Starting on February 4, 2015, the NLRB began tweeting exhortations to non-union employees  to utilize the Agency’s services and notifications to all employees about the broad jurisdictional reach of the NLRA: 

The tweets come on the heels of the Board’s publishing its final representation case rule, dubbed the “quickie election rule,” designed to increase the percentage – currently at an all-time low — of unionized employees in the United States by depriving employers of a meaningful opportunity to present legal arguments to the Board in response to a petition and to inform employees of the adverse consequences of unionization before they vote, contrary to the NLRA.

This likely is the beginning of a push to educate the public about the NLRA’s coverage and encourage employees to seek NLRB redress in disputes with their employers.  Fully or partially unionized employers should take heed and establish preventive programs.