NLRB: It’s Not What Management Says, It’s What Employees Hear

A union sought to organize workers of a construction company. In response, the owner of the company told employees that electing a union would financially “crush” the company. This statement was unlawful because the owner offered no objective evidence that a union win would make it impossible for the company to survive.

This case involves a pretty straight forward maxim of labor law but one that is routinely violated by unsuspecting business owners and management. Pursuant to Gissel Packing Co. (1969), an employer may predict the consequences of unionization as long as the prediction is “carefully phrased on the basis of objective fact” to convey the employer’s belief concerning “demonstrable probable consequence” that are beyond the employer’s control. Here, the business owner did not provide any substantive support for his predictions. Rather, he merely assumed that bargaining with the union would lead to higher wages that he could not afford.

Please let this be another reminder that labor laws are screwy (legal term of art). Even the best, well-intentioned comments and actions can have catastrophic consequences. Here, the employer was forced to accept the union at his workplace. Only time will tell if his “crushing” comment proves to be false or prophetic.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Facebook and NLRB: Still Making Good Blog Fodder

Butler Medical Transport had a social media policy that provided, “I will refrain from using social networking sites which could discredit Butler Medical Transport or damage its image.” After being terminated, an employee posted on Facebook that she believed her termination was unjust. A still-employed employee responded, “Sorry to hear that but if you want you may think about getting a lawyer and taking them to court… You could contact the labor board too.” The employer then fired that employee for making those comments.

The National Labor Relations Board ruled that the discharge violated the Act because 1) the exchange was concerted (i.e. involved group activity); 2) the comments were made for the mutual aid and protection of workers; and 3) the discharge was made pursuant to the unlawful social media policy.

I say this a lot, thankfully Member Miscimarra dissented. He found the Facebook comments were not concerted activity and thus not protected by the National Labor Relations Board. He continued, by opining that the Board’s approach to social media cases has yielded “absurd” results. Circuit Courts agree here and here.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

Difference between Employee and Non-Employee Off-Duty Access Policies

The NLRB and courts recognize that off-duty employees have greater rights than non-employees when it comes to accessing the employer’s property to engage in protected activity.

The NLRB applies a three-part test to determine if an employer’s off-duty access policy is valid under the National Labor Relations Act. An off-duty access policy is valid only if it: 1) limits access solely to the interior of the facility and other working areas; 2) is clearly disseminated to all employees; and 3) applies to off-duty employees seeking access to the facility for any purpose and not just to those engaging in union activity. In essence, employers may not maintain a rule or prohibit off-duty employees from accessing the exterior areas or other non-working areas of the employer’s premises.

The current NLRB will find that simply maintaining an overly broad off-duty access rule is unlawful. For example, off-duty employees distributed union pamphlets advocating for pay raises to other employees and customers just outside the main entrance of a store. The manager told the employees to leave, they did not leave nor were they disciplined for not leaving. The company had a long-standing policy prohibiting employees from loitering or “hanging out” around the company’s premises when off-duty. This policy prohibiting off-duty employees from hanging out in all areas of the employer’s premises was unlawful.

NLRB Chairman Miscimarra argued in his dissent that in evaluating work rules, the NLRB should place more emphasis on how a rule is actually applied compared to the more amorphous standard of how employees may “reasonably construe” a rule. Miscimarra is currently in the minority of the Board. As new Board members are appointed, the NLRB’s position on access rules and many other controversial issues may change.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com. 

NLRB Unanimously Ruled Employee Conduct Lost Protection from the Act

The outcome of this case surprised me because the NLRB has previously found less egregious activity to be protected by the National Labor Relations Act. A union represented nurses at a hospital. The hospital and nurses’ union were negotiating a collective bargaining agreement. Negotiations became somewhat ugly. This caused the employer to cancel a bargaining session and the union employees to agitate against the employer.

When one nurse saw the employer conducting a tour of its hospital for managers and staff from a sister facility she started screaming and demanding to know “who the visitors were and why were they there.” When the employer did not respond, she started asking the visitors directly why were they allowed to visit her hospital when she was barred from visiting their facility (she and a union official previously attempted to visit the sister facility and were denied access). Still receiving no response, the nurse “again asked what the visitors were doing at the hospital, asked one particular visitor how many orientations he needed, and pointed out, sarcastically, ‘here’s the hallway, here’s the window…’”

When the tour wound down in the parking lot, the nurse approached the group, pointed at the leader of the tour and said “this one don’t do sh&t. She ain’t sh$t! She walks around here with an air…I am going to get you the f*ck out of here.” The employer terminated the nurse for unprofessional conduct.

As the NLRB Regional Offices are prone to do, it argued that her termination was motivated by her protected activity. The case went to trial where the Administrative Law Judge ruled that the motivating factor for the discharge was an independent set of circumstances completely divorced from any union or other protected activity – her unprovoked misconduct that interfered with a legitimate tour group. Here’s the kicker, on appeal, the NLRB upheld the ALJ’s decision.

I fully expected the NLRB to rule that the nurse’s behavior towards the tour group was protected concerted activity. I am glad I was wrong. Had the nurse used profanity towards a manager while expressing a legitimate workplace grievance and no outside visitors, customers, or clients were present, her conduct would be protected. Instead, the nurse aimed her antics at a tour group, visitors who were not involved in any workplace dispute, with the sole objective to vex the employer. According to the ALJ:

The tour and its aftermath were not an invitation for her to interfere with the tour so as to turn those acts of interference into protected activity. At best, [the nurse’s] testimony shows that in her mind, she perceived the tour as somehow related to her union activity. But protected activity must be based on objective fact, not subjective perceptions of the party or witness making the claim.

Pro tip to employers: while it certainly feels that employees are able to do whatever they want against an employer these days, don’t just assume a union employee’s activities are protected even during bargaining season. Close scrutiny should be paid to the facts before determining whether the activity was protected, whether it was protected but lost the protection, or whether it was never protected. Once that is determined, you should take appropriate action.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can reach Matt by calling him at (614) 285-5342 or emailing him at Matt@MattAustinLaborLaw.com.

NLRB Just Expanded Its Authority to Find an Employer Violated the Act when Banning Non-Employee from Worksite.

The Obama-era NLRB is determined to go out with a bang. The brief facts of this case, decided by a 2-member majority of pro-union Board Members, is as follows: A beverage supervisor worked at a casino for less than one month. After her employment ended, she frequently socialized at the casino’s nightclub. Six months after her one-month employment ended, she filed a class action lawsuit against the casino for alleged violations of the Fair Labor Standards Act. The casino then barred from the premises during the litigation.

Following in the footsteps of most plaintiff lawyers these days, she filed an unfair labor practice charge with the NLRB over the ban. That’s right. A former employee filed a ULP against her employer who banned her from the worksite more than 6 months after her employment ended. Surely this case would not survive because 1) Section 10(b) statute of limitations, or 2) the National Labor Relations Act only protects employees (and applicants). Wrong. The NLRB held that barring her from the premises after she filed a lawsuit violated Section 8(a)(1) of the Act since it was retaliation for engaging in the protected, concerted activity of filing a law suit.

Thankfully we have Chairman Miscimarra who dissented. While his dissent does not change the absurd outcome, it does provide guidance for when the Board is faced with similar facts after President Trump’s appointments are confirmed. Miscimarra did not believe the ban violated Section 8(a)(1). To him, there was no allegation that excluding the employee from her former place of employment affected her wages, hours, or terms and conditions of employment.

Secondly, Miscimarra opined that the Board must weigh the interest of employees in concerted activity against the interest of employers in operating their businesses. The record contained nothing preventing the NLRA-protected conduct by the former employee. Notably, the Fair Labor Standards Act has its own anti-retaliation provision and the NLRB cannot take it upon itself to enforce other statutes.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

“No Loitering” Policy: Unlawful says NLRB

Loiter (verb): to stand or wait around idly or without apparent purpose.

Many workplaces prohibit off-duty workers from loitering at the worksite. These policies make great sense. They decrease the likelihood of wage and hour violations by providing off-duty employees the opportunity to claim they were working, but not being paid for their work. They also decrease the risk of an off-duty employee being injured at work and thus file workers compensation claims. Most of the handbooks I have reviewed have “no loitering” policies, and my clients strictly enforce them.

Well, the NLRB recently determined that a no loitering policy at a restaurant violated the National Labor Relations Act because it prevented employees from engaging in concerted activities for the purpose of collective bargaining or other mutual aid or protection, i.e. the right to handbill.

The NLRB held that “an employer’s rule denying access to off-duty employees to all areas of its premises violates the Act unless there are legitimate business concerns to justify the rule or policy.” The Board further found that the rule was overly broad and ambiguous because it did not define “loiter” or “hang around,” and could reasonably be interpreted to prohibit employees from engaging in protected activities, such as handbilling. Also, the rule contained no exception for protected activities like handbilling (despite the Board previously ruling several times that such disclaimers do not turn an unlawful policy into a lawful policy).

To all the employers who have a similar policy in their handbook, I have included the definition of loitering at the top of this post. Copy and paste it into your handbook. Then add a (useless?) disclaimer that the policy does not cover protected activity. Time for my disclaimer: What I just said is not legal advice; your no loitering policy may still violate the NLRA even after doing what I said.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.

Like Backyard Football when We were Kids, NLRB Allows a “Do-Over”

A union election was underway. One group of employees alleged co-worker Williams threatened to hang any employee who did not vote for the union “like they did…back in the 60s”. The company fired Williams. Williams filed an unfair labor practice charge over his termination. At hearing, the two employees maintained they heard the threat while three other employees said they did not hear Williams make a threat. When this “he-said-she-said” situation occurs, the Administrative Law Judge is required to decide which witnesses are more credible and make a ruling accordingly.

Here, the ALJ ruled that Williams did not make the statement, but then cast doubt on his decision by writing that he “might well be wrong,” and that “some doubt persists” regarding whether Williams made the threat. On appeal, the NLRB held that the ALJ had “undercut his own analysis” by not making a definitive credibility call.

The ALJ also appeared confused about the burden shifting requirements in this case. He seemed to believe that the co-worker had the burden of proving Williams made the threat about hanging people when actually the NLRB’s General Counsel had that burden.

Rather than doing what Boards in the past would have done and dismissed the case, the current Obama hold-over NLRB remanded the case back to the same ALJ for a determination of whether the general counsel carried his burden to prove that Williams did not actually make the statement about hanging.

A do-over. Go figure.

Matt Austin owns Austin Legal, LLC, a boutique law firm based in Ohio that limits its representation to employers dealing with labor, employment, and OSHA matters. You can call Matt at (614) 285-5342 or email him at Matt@MattAustinLaborLaw.com.