EXPANDING AGENDA OF THE NLRB
Presented by
Gillian M. Fahlsing
Senter Goldfarb & Rice, L.L.C.
1700 Broadway | Suite 1700
Denver, CO | 80290
303.320.0509
www.sgrllc.com | gfahlsing@sgrllc.com
CDLA 2014 Annual Conference
July 24-27, 2014
Telluride, Colorado
© Senter Goldfarb & Rice, L.L.C.
INTRODUCTION
In 2013, the union membership rate – the percent of wage and salary workers
who were members of a union – was 11.3 percent, the same as in 2012, according to
the Bureau of Labor Statistics. Private sector workers had a union membership rate of
6.7 percent. (See 1/24/14 BLS News Release – www.bls.gov). This begs the question of
why the decisions of the NLRB are important and why the NLRA is still relevant.
Section 7 of the NLRA has generally been viewed as a right to discuss wages,
terms and conditions of employment, and working conditions. Generally speaking, the
NLRB and general counsel have focused on prosecuting unfair labor practices
stemming from employers with unionized workers. However, the NLRA applies to both
union and non-union employees, and the focus in recent years has changed to
scrutinizing employment policies that are unlawful based on an extremely broad
interpretation of Section 7 of the NLRA, most significantly, “protected concerted activity”.
Today, the NLRB has a full contingent of five Senate-confirmed members.
Anticipated issues to be decided include, but are not limited to the following:

“Protected concerted activity”

Social media policies

Confidentiality policies

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Use of company e-mail for union activity
Non-union employees’ rights in disciplinary actions and at-will employment
policies
Overview1
I.
Congress enacted the National Labor Relations Act ("NLRA") in 1935 to protect
the rights of employees and employers, to encourage collective bargaining, and to
curtail certain private sector labor and management practices, which can harm the
general welfare of workers, businesses and the U.S. economy. 29 U.S.C. §§ 151-169
[Title 29, Chapter 7, Subchapter II, United States Code].*

Sec. 7. [§ 157.] Employees shall have the right to self-organization, to form, join,
or assist labor organizations, to bargain collectively through representatives of
their own choosing, and to engage in other concerted activities for the purpose of
collective bargaining or other mutual aid or protection, and shall also have the
right to refrain from any or all of such activities except to the extent that such right
may be affected by an agreement requiring membership in a labor organization
as a condition of employment as authorized in section 8(a)(3) [section 158(a)(3)
of this title].*
A.
The National Labor Relations Board (“NLRB”)
The Board has five Members and primarily acts as a quasi-judicial body in
deciding cases on the basis of formal records in administrative proceedings. Board
Members are appointed by the President to 5-year terms, with Senate consent, the term
of one Member expiring each year.*
1.
Two-Member Board Cases
From January 2008 to March 2010, the Board operated with three of its five seats
vacant. The two remaining members issued about 550 decisions, dozens of which were
appealed to federal courts on the grounds that the two-member Board did not have the
authority to act. On June 17, 2010, a divided Supreme Court ruled in New Process Steel
v. NLRB that the two-member Board lacked the authority to decide cases as the Board
must have a quorum of at least three members to take action. About 100 two-member
decisions were returned to the Board for reconsideration; as of early 2011, new
decisions had been issued in all but a few of them. A list of affected Board decisions is
available at www.nlrb.gov.
1
* Indicates this material was uploaded from National Labor Relations Board official
website www.nlrb.gov.
2
2.
NLRB v. Canning (No. 12-1281)
On June 26, 2014, the U.S. Supreme Court ruled that the “recess” appointments
of several members of the NLRB made by President Obama while the Senate was in a
three-day recess were invalid. This decision likely invalidates hundreds of NLRB rulings
issued by the Board between January 4, 2012 and July 30, 2013, including decisions on
issues such as social media and “protected concerted activity”. The NLRB has had a full
slate of board members since July 2013. On June 26, 2014, the NLRB Chairman issued
a statement that the NLRB is analyzing the impact that the Court’s decision has on
Board cases in which the January 2012 recess appointees participated.
Some of the significant decisions likely impacted include:
a. Alan Ritchey, Inc., 359 NLRB No. 40 (Dec. 14, 2012) (despite lack of
collective bargaining agreement, employer must notify union and
provide it with an opportunity to bargain over individual discretionary
discipline before the discipline is imposed);
b. WKYC-TV, 359 NLRB No. 30 (Dec. 12, 2012) (even after a collective
bargaining agreement contract has expired, the employer remains
obligated to collect union dues);
c. American Baptist Homes of the West, 359 NLRB No. 46 (Dec. 16,
2012) (employers not entitled to keep witness statements confidential
from requesting union but must disclose as part of duty to provide
information to union);
d. Fresenius USA Manufacturing, Inc., 358 NLRB No. 138 (Sept. 19,
2012) (although employer’s investigation into a harassment complaint
was lawful, its discipline of union member for writing a vulgar term was
unlawful because the activity was “protected” by the NLRA).
B.
The General Counsel
The General Counsel, appointed by the President to a 4-year term, is
independent from the Board and is responsible for the investigation and prosecution of
unfair labor practice cases and for the general supervision of the NLRB field offices in
the processing of cases.*
C.
Division of Judges
The NLRB's 40 Administrative Law Judges docket, hear, settle and decide unfair
labor practice cases nationwide, operating through offices in Washington, Atlanta, New
York, and San Francisco. The Division of Judges assigns cases approximately 3 weeks
before the trial date, at which time the judges contact all parties in an attempt to settle
the case and to resolve certain pre-trial or subpoena issues. For cases that do not
settle, the judges make arrangements for the hearing. Upon close of the hearing, the
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judges consider the trial records and briefs, and write their decisions. A small number of
cases result in bench decisions, which are delivered orally by the judge at the
conclusion of the hearing.*
II.
Employee Rights
Employees covered by the NLRA are guaranteed the right to form, join, decertify,
or assist a labor organization, and to bargain collectively through representatives of their
own choosing, or to refrain from such activities. Employees may also join together to
improve terms and conditions of employment without a union.*

III.
Union Activity and Non-Union Activity
Union Activity
Employees have the right to attempt to form a union where none currently exists,
or to decertify a union that has lost the support of employees.*
Examples of employee rights include:
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

IV.
Forming, or attempting to form, a union in your workplace;
Joining a union whether the union is recognized by your employer or not;
Assisting a union in organizing your fellow employees;
Refusing to do any or all of these things;
To be fairly represented by a union.
Activity Outside a Union
Employees who are not represented by a union also have rights under the
NLRA. Specifically, the National Labor Relations Board protects the rights of
employees to engage in “concerted activity”, which is when two or more employees
take action for their mutual aid or protection regarding terms and conditions of
employment. A single employee may also engage in protected concerted activity if he
or she is acting on the authority of other employees, bringing group complaints to the
employer’s attention, trying to induce group action, or seeking to prepare for group
action.*
A few examples of protected concerted activities are:



Two or more employees addressing their employer about improving their pay.
Two or more employees discussing work-related issues beyond pay, such as
safety concerns, with each other.
An employee speaking to an employer on behalf of one or more co-workers
about improving workplace conditions.
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► The NLRA protects the ability of employees to communicate whether
unionized or not about their workplace and, therefore, an act that tends to chill
employees in the exercise of their Section 7 rights violates the NLRA. See
Lafayette Park Hotel, 326 NLRB 824, 825 (1998).
V.
Protected Concerted Activity
The NLRA gives employees the right to act together to try to improve their pay
and working conditions, with or without a union. If employees are fired, suspended, or
otherwise penalized for taking part in protected group activity, the National Labor
Relations Board (“NLRB”) will fight to restore what was unlawfully taken away. These
rights were written into the original 1935 National Labor Relations Act and have been
upheld in numerous decisions by appellate courts and by the U.S. Supreme Court.*
Examples of recent cases involving a range of industries and employees follow:
1.
Rain City Contractors, Inc.,* 19-CA-31580:
A construction contractor fired five employees after several of them appeared in
a YouTube video complaining of hazardous working conditions. Following an
investigation, the NLRB regional office issued complaint. As a hearing opened, the case
settled, with the workers receiving full backpay and declining reinstatement.
The employees, all immigrants from El Salvador, learned they were building
concrete foundations at a former Superfund site and worried that the soil they were
handling was contaminated with arsenic and other toxins. They also said they were
required to wear badges indicating they’d been trained to handle hazardous materials,
when in fact, the badges belonged to other workers and they had never been trained.
Three of the employees took their concerns public in a YouTube video posted on
July 21, 2008. Speaking in Spanish, they hid their faces in shadow in an attempt to
avoid retaliation. However, within 10 days, the three who appeared in the video and two
others who were close to them had all lost their jobs with Rain City Contractors.
Through the ensuing months, according to charges filed with the agency’s Seattle office,
the employer continued to threaten and interrogate other employees, warning them not
to talk about working conditions with outsiders.
Following an investigation of the charges, the NLRB Regional Director
determined that the YouTube video was protected because the employees voiced
concerns about safety in the workplace, and the public airing of their complaints did not
lose the Act's protection because they accurately described their concerns about
working conditions. On behalf of the NLRB General Counsel, the director issued a
complaint calling for a hearing before an administrative law judge.
As the hearing began in June of 2009, NLRB attorneys were prepared to play the
video, and to present evidence that the employer had been fined for numerous
violations of state law regarding the same concerns as those raised by the workers.
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However, on the second morning of testimony, Rain City Contractors agreed to settle
the case by giving all five workers full backpay for the period from their discharges to
the settlement date. The workers declined reinstatement.
2.
Bud of California/Dole Fresh Vegetables,* 32-CA-025336:
A long-time employee at a vegetable packing plant was fired after raising safety
concerns on behalf of other workers with company management and a government
agency. The NLRB issued a complaint alleging the firing was unlawful because the
employee’s activity was protected. Prior to a scheduled hearing, the case settled and
the employee was reinstated with full backpay for time off work.
Rick F., a storage and retrieval technician at the Dole Fresh Vegetables packing
plant, complained to managers and co-workers multiple times about what he said were
unsafe conditions that endangered him and other employees. At one point, he called the
county health department to report a potentially dangerous situation involving rusted
ammonia pipes. Hours after the Health Department disclosed to the company that it was
Rick who made the complaint, he was suspended. Two days later, he was fired for
allegedly leaving his work post and yelling at a supervisor -- charges that he denied.
He contacted the California Labor Commission, which referred him to the NLRB
regional office in Oakland, where he filed a charge. After an investigation, the Regional
Director determined there was reasonable cause to believe that Rick was fired because
of his stated concerns about employee safety, which was protected activity. The
Regional Office issued a complaint and called for a hearing before an Administrative
Law Judge, but the case settled before the hearing, with Rick receiving full backpay of
about $20,000 and reinstatement to his former job.
3.
Hospitality Staffing Solutions, LLC,* 28-CA-022628:
When a hotel housekeeping service announced a $2-per-hour wage cut,
employees protested in letters to managers, written with the help of a community
organization. Workers who led the effort and signed the letters were later fired. After the
NLRB issued complaint, both employees received full backpay and offers of
reinstatement.
Two housekeepers filed charges after having been fired. In a conversation with
an NLRB field agent, Maria said she and co-workers who cleaned rooms at luxury
hotels and spas felt the sudden pay cut was an “injustice” and sought help from a local
community group, Somos un Pueblo Unido. With the group’s help, the workers
composed letters to senior management at the staffing company, asking them to
reconsider cutting the current $9.50 per hour wage by $2. A short time later, Maria,
whose signature was prominent on the letter, was transferred to another hotel and then
fired. Her colleague and co-signer, Juan Lopez, was interrogated and then fired as well.
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Maria and Juan filed charges with the NLRB regional office, and an investigation
found reasonable cause to believe their firings were unlawful. The Regional Director, on
behalf of the General Counsel, issued a complaint calling for a hearing before an
administrative law judge. Prior to a trial, however, the employer settled the case. Both
workers received full backpay and offers of reinstatement, which they declined.
4.
Evco Plastics,* 30-CA-17795:
Women working the overnight shift at a plastics manufacturing plant discussed
concerns about a new supervisor, who they later learned was a registered sex offender.
They asked for a group meeting with Human Relations officials, but were instead called
into individual meetings and disciplined. One employee was fired; others were demoted.
Following an NLRB investigation, the employer settled the case by agreeing to restore
all employees to their former positions with full backpay.
Soon after the supervisor started working the third shift at the Evco Plastics
manufacturing plant, a group of female employees expressed concerns to each other
about his aggressive attitude and preferential treatment of one of their co-workers.
When an Internet search by one of the employees uncovered that the supervisor had a
criminal history and was a registered sex offender, the women requested a group
meeting with HR to talk about their concerns with the supervisor’s behavior and actions,
which also included inappropriately touching some employees at work.
Instead, each employee was called individually into a meeting with management,
with the offending supervisor present. The women were questioned about what they
knew, who they heard it from, and who they had talked to about it. Based on what was
said in these meetings, the employer issued written warnings to the employees,
demoted two of them, reassigned one to a different shift, and terminated another -- all
for having talked about the supervisor with each other. Five of the employees filed
charges with the NLRB Milwaukee Regional Office. Following an investigation, the
regional director determined that the employees had engaged in protected activities and
there was reasonable cause to believe they had been unlawfully interrogated about and
retaliated against because of these activities.
After the NLRB notified Evco Plastics that a complaint would issue, the company
settled the case by providing full backpay to all affected employees, eliminating written
warnings from their records, and offering to return the employees to their former
positions.
5.


In a Nutshell
Protected: When the employee “acting with or the authority of” coworkers (a)
“seeks to initiate, induce or prepare for group action,” or (b) “brings truly group
complaints to the attention of management.”
Protected: The employee’s activities are “the logical outgrowth of concerns
expressed by the employees collectively.”
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

VI.
Unprotected: The employee is engaging in activity “solely by and on behalf of the
employee himself.”
Unprotected: The employee’s comments are “mere griping” as opposed to “group
action.”
Who is Covered Under the NLRA?
Most employees in the private sector are covered by the NLRA. However, the Act
specifically excludes individuals who are:*



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VII.
employed by Federal, state, or local government;
employed as agricultural laborers;
employed in the domestic service of any person or family in a home;
employed by a parent or spouse;
employed as an independent contractor;
employed as a supervisor (supervisors who have been discriminated against
for refusing to violate the NLRA may be covered);
employed by an employer subject to the Railway Labor Act, such as railroads
and airlines;
employed by any other person who is not an employer as defined in the NLRA.
Employer/Union Rights and Obligations
The NLRA forbids employers from interfering with, restraining, or coercing
employees in the exercise of rights relating to organizing, forming, joining or assisting
a labor organization for collective bargaining purposes, or from working together to
improve terms and conditions of employment, or refraining from any such activity.
Similarly, labor organizations may not restrain or coerce employees in the exercise of
these rights.*
► Examples of employer conduct that violates the law:






Threatening employees with loss of jobs or benefits if they join or vote for a
union or engage in protected concerted activity.
Threatening to close the plant if employees select a union to represent them.
Questioning employees about their union sympathies or activities in
circumstances that tend to interfere with, restrain or coerce employees in the
exercise of their rights under the Act.
Promising benefits to employees to discourage their union support.
Transferring, laying off, terminating, assigning employees more difficult work
tasks, or otherwise punishing employees because they engaged in union or
protected concerted activity.
Transferring, laying off, terminating, assigning employees more difficult work
tasks, or otherwise punishing employees because they filed unfair labor
practice charges or participated in an investigation conducted by NLRB.
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► Examples of labor organization conduct that violates the law:

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

VIII.
Threats to employees that they will lose their jobs unless they support the
union.
Seeking the suspension, discharge or other punishment of an employee for not
being a union member even if the employee has paid or offered to pay a lawful
initiation fee and periodic fees thereafter.
Refusing to process a grievance because an employee has criticized union
officials or because an employee is not a member of the union in states where
union security clauses are not permitted.
Fining employees who have validly resigned from the union for engaging in
protected concerted activities following their resignation or for crossing an
unlawful picket line.
Engaging in picket line misconduct, such as threatening, assaulting, or barring
non-strikers from the employer's premises.
Striking over issues unrelated to employment terms and conditions or
coercively enmeshing neutrals into a labor dispute.
Jurisdictional Standards
The Board has statutory jurisdiction over private sector employers whose
activity in interstate commerce exceeds a minimal level. Over the years, it has
established standards for asserting jurisdiction, which are described below. As a
practical matter, the Board’s jurisdiction is very broad and covers the great majority of
non-government employers with a workplace in the United States, including nonprofits, employee-owned businesses, labor organizations, non-union businesses, and
businesses in states with “Right to Work” laws.*
A.
Retailers
Employers in retail businesses fall under the Board’s jurisdiction if they have a
gross annual volume of business of $500,000 or more. This includes employers in the
amusement industry, apartment houses and condominiums, cemeteries, casinos,
home construction, hotels and motels, restaurants and private clubs, and taxi
services. Shopping centers and office buildings have a lower threshold of $100,000
per year.*
B.
Non-Retailers
For non-retailers, jurisdiction is based on the amount of goods sold or services
provided by the employer out of state (“outflow”) or purchased by the employer from
out of state (“inflow”). Outflow or inflow can be direct or ‘indirect’, passing through a
third company such as a supplier. The Board takes jurisdiction when annual inflow or
outflow is at least $50,000.*
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C.
Special Categories
1.
Channels of interstate commerce:
For businesses providing essential links in the transportation of goods or
passengers, including trucking and shipping companies, private bus companies,
warehouses and packing houses, the minimum is $50,000 in gross annual volume.*
2.
Health care and child care institutions:
Hospitals, medical and dental offices, social services organizations, child care
centers and residential care centers with a gross annual volume of at least $250,000
are under NLRB jurisdiction; for nursing homes and visiting nurses associations, the
minimum is $100,000.*
3.
Law firms and legal service organizations:
The minimum is $250,000 in gross annual volume.*
4.
Cultural and educational centers:
For private and non-profit colleges, universities, and other schools, art museums
and symphony orchestras, the annual minimum is $1 million.*
5.
Federal contractors:
Private contractors who work for the federal government are under NLRB
jurisdiction. In addition, all federal contractors are required by the Department of Labor
to post a Notice of Employee Rights under the NLRA.*
6.
Religious organizations:
The Board will not assert jurisdiction over employees of a religious organization
who are involved in effectuating the religious purpose of the organization, such as
teachers in church-operated schools. The Board has asserted jurisdiction over
employees who work in the operations of a religious organization that did not have a
religious character, such as a health care institution.*
7.
Indian tribes:
The Board asserts jurisdiction over the commercial enterprises owned and
operated by Indian tribes, even if they are located on a tribal reservation. But the Board
does not assert jurisdiction over tribal enterprises that carry out traditional tribal or
governmental functions.*
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► The following employers are excluded from NLRB jurisdiction by statute or
regulation:*
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
IX.
Federal, state and local governments, including public schools, libraries, and
parks, Federal Reserve banks, and wholly-owned government corporations.
Employers who employ only agricultural laborers, those engaged in farming
operations that cultivate or harvest agricultural commodities or prepare
commodities for delivery.
Employers subject to the Railway Labor Act, such as interstate railroads and
airlines.
Conducting Elections*
One of the NLRB's primary responsibilities is to hold secret ballot elections so
that employees can decide whether they wish to be represented by a labor union or, if
already represented, to remove the union or replace it with another.
To start the election process, a petition must be filed with the nearest NLRB
Regional Office showing interest in the union from at least 30% of employees. NLRB
agents will then investigate to make sure the Board has jurisdiction, the union is
qualified, and there are no existing labor contracts that would bar an election. The
agents will then seek an election agreement between the employer and union setting
the time and place for balloting, the ballot language, the size of the unit, and a method
to determine who is eligible to vote. Once an agreement is in place, the parties
authorize the NLRB Regional Director to conduct the election. If no agreement is
reached, the Regional Director can schedule a hearing and then order the election and
set the conditions in accordance with the Board's rules and its decisions.
Typically, elections are held within 30 days of a Director's order or authorization.
However, an election may be postponed if a party files charges alleging conduct that
would interfere with employee free choice in the election, such as threatening loss of
jobs or benefits by an employer or a union, granting promotions, pay raises, or other
benefits to influence the vote, or making campaign speeches to employees on company
time within 24 hours of the election.
When a union is already in place, a competing union may file an election petition
if the labor contract has expired or is about to expire, and it can show interest by at least
30% of the employees. This would normally result in a three-way election, with the
choices being the incumbent labor union, the challenging one, and "none." If none of the
three receives a majority vote, a runoff will be conducted between the top two votegetters.
Representation and decertification elections are decided by a majority of votes
cast. Observers from all parties may choose to be present when ballots are counted.
Any party may file objections with the appropriate Regional Director within 7 days of the
vote count. In turn, the Regional Director's ruling may be appealed to the Board in
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Washington. Results of an election will be set aside if conduct by the employer or the
union created an atmosphere of confusion or fear of reprisals and thus interfered with
the employees' freedom of choice.
Otherwise, a union that receives a majority of the votes cast is certified as the
employees' bargaining representative and entitled to be recognized by the employer as
the exclusive bargaining agent for the employees in the unit. Failure to bargain with the
union at this point is an unfair labor practice.
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*
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X.
Unfair Labor Practices*
A.
Investigate Charges
The NLRB receives about 20,000 to 30,000 charges per year from employees,
unions and employers covering a range of unfair labor practices described in Section 8
of the Act. Each charge is investigated by Board agents who gather evidence and may
take affidavits from parties and witnesses. Their findings are evaluated by the Regional
Director, and in certain novel or significant cases, reviewed by NLRB attorneys at the
Division of Advice in Washington DC. Typically, a decision is made about the merits of a
charge within 7 to 12 weeks, although certain cases can take much longer. During this
period, the majority of charges are settled by the parties, withdrawn by the charging
party, or dismissed by the Regional Director.
When the NLRB investigation finds sufficient evidence to support the
charge, every effort is made to facilitate a settlement between the parties. If no
settlement is reached in a meritorious case, the agency issues a complaint. Common
allegations against employers in complaints include threats, interrogations and unlawful
disciplinary actions against employees for their union activity; promises of benefits to
discourage unionization; and, in the context of collective bargaining relationships,
refusals to provide information, refusals to bargain, and withdrawals of recognition.
Common allegations against unions include failure to represent an employee and failure
to bargain in good faith.
The issuance of a complaint leads to a hearing before an NLRB Administrative
Law Judge (unless there is a settlement). After issuing a complaint, the NLRB becomes
a representative for the charging party throughout settlement discussions and the Board
process. Board attorneys help gather and prepare materials, and keep the parties
apprised of case developments.
It is illegal for an employer or union to retaliate against employees for filing
charges or participating in NLRB investigations or proceedings.
B.
Remedies
Under its statute, the NLRB cannot assess penalties. The agency may seek
make-whole remedies, such as reinstatement and backpay for discharged workers, and
informational remedies, such as the posting of a notice by the employer promising to not
violate the law.
C.
Temporary Injunctions
While the case proceeds through the Board process, the Regional Director may
petition the appropriate U.S. District Court for temporary injunction orders to restore the
status quo where rights have been violated, under Section 10(j) of the Act. The General
Counsel must first approve the petition and the Board must authorize it. If granted by
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the Court, an injunction may, among other things, require a party to return to bargaining,
or reinstate unlawfully discharged employees, or stop the unlawful subcontracting of
union jobs.
D.
Office of Appeals
A Regional Director's decision to dismiss a charge may be appealed to the Office
of Appeals in Washington D.C. within two weeks of the dismissal. The Office handles
about 2000 cases a year. Each appeal is assigned to an attorney and a supervisor for a
review of all documents in the case, including new information submitted by the
charging party. All cases in which it is proposed to reverse the Regional Director's
determination are presented to the General Counsel for decision.
Significant cases may be presented for General Counsel review even where the
recommendation is to uphold the Regional determination. The Office may also remand
cases to the regions for further investigation where necessary. Because such
decisions are not reviewable in court, there is no further recourse for parties who
believe that a charge has been unfairly dismissed.
E.
Facilitating Settlement
The NLRB encourages parties to resolve cases by settlement rather than
litigation whenever possible. In fact, more than 90% of meritorious unfair labor practice
cases are settled by agreement at some point in the process, either through a Board
settlement or a private agreement.
1.
Board Settlement Agreements
When an investigation by a Regional Office finds merit to an unfair labor practice
charge, the Regional Director routinely gives the charged party an opportunity to settle
before issuing a complaint. Regional staff members draft a proposed settlement
agreement which fully remedies all of the meritorious unfair labor practice allegations.
The charged party can agree to the terms or suggest changes, subject to approval by
the Regional Director.
The goal is always to reach a settlement that is acceptable to the charging party,
the charged party and the Agency. On rare occasions, the Regional Director may
approve a settlement that the charged party agrees with but the charging party is
unwilling to sign. In these cases, it would be the Regional Director’s position that the
settlement substantially remedies the alleged unfair labor practices. The charging party
may appeal the Director’s approval of the settlement to the NLRB Office of Appeals.
If the charged party agrees and signs the settlement, no complaint will be issued
and the case will be closed after full compliance with the terms of the settlement
agreement. If there is no settlement, the Region will issue a complaint and a hearing will
be scheduled before an Administrative Law Judge. Throughout this process, the Region
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will continue to pursue a settlement which substantially remedies all meritorious unfair
labor practice allegations.
This type of settlement fashioned in the Region is known as an Informal Board
Settlement. Much less common is a Formal Board Settlement, which is a written
stipulation approved by the Board and results in the issuance of a Board order and often
a court judgment. Formal settlements are typically sought in cases where the charged
party has a history of committing unfair labor practices, or where an informal settlement
is otherwise not appropriate.
2.
Private Non-Board Agreements
Unfair labor practice charges may also be resolved by private agreement
between the parties. However, before allowing charges to be withdrawn, the Regional
Director must review and approve of the private settlement agreement. Because the
Board must enforce public interests, and not private rights, it may reject a non-Board
adjustment that violates the National Labor Relations Act or Board policy.
These agreements are subject to a higher level of scrutiny in cases where a merit
determination has already been made, and may not be appropriate in circumstances
such as when the charged party has engaged in a history of violations of the Act or has
breached previous settlement agreements. Non-Board adjustments do not have the
Board’s approval and are not policed by the Agency.
XI.
Deciding Cases*
When complaints of Unfair Labor Practices issued by regional directors do not
lead to settlement, they typically result in a hearing before an NLRB Administrative Law
Judge. As in any court proceeding, both parties prepare arguments and present
evidence, witnesses, and experts. After evaluating the evidence, the judges issue initial
decisions. ALJ decisions are subject to review by the Board in Washington
D.C., composed of five Members nominated by the President and confirmed by the
Senate. Any or all parties can appeal by filing exceptions.
In considering an appeal, the Board reviews the case record, including all
documents produced by the regional investigation. Often a panel of three Board
Members will decide a case, but the full Board usually considers novel or potentially
precedent changing cases. The Board issues several hundred decisions per year.
Board decisions may be appealed to an appropriate U.S. Court of Appeals, and
ultimately to the U.S. Supreme Court.
A.
Administrative Law Judge Decisions
After a Regional Director issues a complaint in an unfair labor practice case, an
NLRB Administrative Law Judge hears the case and issues a decision and
recommended order, which can then be appealed to the Board in Washington. If no
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exceptions are filed, the judge's order becomes the order of the Board. An
administrative law judge's decision is not binding legal precedent in other cases unless
it has been adopted by the Board on review of exceptions; these judges function much
like trial court judges hearing a case without a jury. Such hearings are conducted at the
locality where the unfair labor practice allegedly occurred. On occasion, administrative
law judges also issue decisions in non-complaint, post-election representation cases
that may be appealed to the Board.
XII.
Enforcing Orders*
In reviewing cases, the Circuit Courts evaluate the factual and legal basis for the
Board’s Order and decide, after briefing or oral argument, whether to enter a judicial
decree commanding obedience to the Order. The Court may also enter an Order on the
grounds that the responding party failed to oppose or had no legal basis to oppose the
Board’s action. In recent years, Circuit Courts have decided about 65 cases a year
involving the NLRB. The majority - nearly 80% - have been decided in the Board’s favor.
► Securing monetary remedies and Protecting assets:
Board attorneys conduct civil and criminal contempt litigation in the U.S. Courts
of Appeals to secure monetary remedies such as back pay and to obtain protective
orders to ensure that assets will not be dissipated in an effort to avoid obligations.
► Final Review by U.S. Supreme Court:
Any Circuit Court decision can be subject to final review by the U.S. Supreme
Court, if the parties or the Board seek it. Before presenting a petition asking the high
court to consider a case, or grant certiorari, the Board must first receive permission from
the U.S. Solicitor General.
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XIII.
The NLRB and Social Media*
The National Labor Relations Act protects the rights of employees to act together
to address conditions at work, with or without a union. This protection extends to certain
work-related conversations conducted on social media, such as Facebook and Twitter.
In 2010, the National Labor Relations Board, an independent federal agency that
enforces the Act, began receiving charges in its regional offices related to employer
social media policies and to specific instances of discipline for Facebook postings.
Following investigations, the agency found reasonable cause to believe that some
policies and disciplinary actions violated federal labor law, and the NLRB Office of
General Counsel issued complaints against employers alleging unlawful conduct. In
other cases, investigations found that the communications were not protected and so
disciplinary actions did not violate the Act.
A.
General Counsel Memoranda
To ensure consistent enforcement actions, and in response to requests from
employers for guidance in this developing area, Acting General Counsel Lafe Solomon
released three memos in 2011 and 2012 detailing the results of investigations in dozens
of social media cases.
The first report, issued on August 18, 2011, described 14 cases. In four cases
involving employees’ use of Facebook, the Office of General Counsel found that the
employees were engaged in "protected concerted activity" because they were
discussing terms and conditions of employment with fellow employees. In five other
cases involving Facebook or Twitter posts, the activity was found to be unprotected. In
one case, it was determined that a union engaged in unlawful coercive conduct when it
videotaped interviews with employees at a nonunion jobsite about their immigration
status and posted an edited version on YouTube and the Local Union’s Facebook page.
In five cases, some provisions of employers’ social media policies were found to be
overly-broad. A final case involved an employer’s lawful policy restricting its employees’
contact with the media.
The second report, issued Jan 25, 2012, also looked at 14 cases, half of which
involved questions about employer policies. Five of those policies were found to be
unlawfully broad, one was lawful, and one was found to be lawful after it was revised.
The remaining cases involved discharges of employees after they posted comments to
Facebook. Several discharges were found to be unlawful because they flowed from
unlawful policies. But in one case, the discharge was upheld despite an unlawful policy
because the employee’s posting was not work-related. The report underscored two
main points regarding the NLRB and social media:

Employer policies should not be so sweeping that they prohibit the kinds of
activity protected by federal labor law, such as the discussion of wages or
working conditions among employees.
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
An employee’s comments on social media are generally not protected if they
are mere gripes not made in relation to group activity among employees.
The third report, issued May 30, 2012, examined seven employer policies
governing the use of social media by employees. In six cases, the General Counsel’s
office found some provisions of the employer’s social media policy to be lawful and
others to be unlawful. In the seventh case, the entire policy was found to be lawful.
Provisions were found to be unlawful when they interfered with the rights of employees
under the National Labor Relations Act, such as the right to discuss wages and working
conditions with co-workers.
Some of the early social media cases were settled by agreement between the
parties. Others proceeded to trial before the agency’s Administrative Law Judges.
Several parties then appealed those decisions to the Board in Washington D.C.
B.
Board Decisions
In the fall of 2012, the Board began to issue decisions in cases involving
discipline for social media postings. Board decisions are significant because they
establish precedent in novel cases such as these. However, given the Supreme Court’s
ruling in Canning, the issues decided in that timeframe are likely to be revisited.
In the first such decision, issued on September 28, 2012, the Board found that
the firing of a BMW salesman for photos and comments posted to his Facebook page
did not violate federal labor law. The question came down to whether the salesman was
fired exclusively for posting photos of an embarrassing accident at an adjacent Land
Rover dealership, which did not involve fellow employees, or for posting mocking
comments and photos with co-workers about serving hot dogs at a luxury BMW car
event. Both sets of photos were posted to Facebook on the same day; a week later, the
salesman was fired. The Board agreed with the Administrative Law Judge that the
salesman was fired solely for the photos he posted of a Land Rover incident, which was
not concerted activity and so was not protected.
(1) Karl Knauz Motors, Inc. and Robert Becker, 13-CA-46452
After employee posted photos on his Facebook page and comments on the
dealership’s event page that were critical of a promotional event, ALJ
concluded that posts related to promotional event were protected, concerted
activities for which Becker could not be disciplined or terminated.
Facebook: “I was happy to see that Knauz went “All Out” for the most
important launch of a new BMW in years...The small 8 oz bags of chips, and
the $2.00 cookie plate from Sam’s Club, and the semi fresh apples and
oranges were such a nice touch...but to top it all off...the Hot Dog Cart.
Where our clients could attain a [sic] over cooked wiener and a stale bunn
[sic]...”
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In the second decision, issued December 14, 2012, the Board found that it was
unlawful for a non-profit organization to fire five employees who participated in
Facebook postings about a coworker who intended to complain to management about
their work performance. In its analysis, the Board majority applied settled Board law to
social media and found that the Facebook conversation was concerted activity and was
protected by the National Labor Relations Act.
(2) Hispanics United of Buffalo, Inc. and Carlos Ortiz, 3-CA-27872
Five employees’ Facebook communications with each other, in reaction to a
co-worker’s criticisms of the manner in which HUB employees performed their
jobs, were protected.
Facebook: “[C]oworker feels that we don’t help our clients enough at HUB I
[sic] about had it! My fellow coworkers how do u [sic] feel? What the f. .. Try
doing my job I have 5 programs. What the Hell, we don’t have a life as is,
What else can we do???”
C.
Additional Decisions
(1) American Medical Response of Connecticut, Inc and International
Brotherhood of Teamsters Local 443, 34-CA-12576
NLRB took position that postings were protected concerted activity and are no
different than if she were talking at the company’s water cooler.
Facebook: “Looks like I’m getting some time off. Love how the company
allows a 17 [AMR code for a psychiatric patient] to be a supervisor.” “Frank
being a d**k.” “Yep he’s a scumbag as usual.”
(2) Arizona Daily Star, 28-CA-23267
Reporter was fired based on content of his tweets; NLRB issued Advice
Memo concluding that even if employer implemented an unlawful rule, the
charging party was terminated for posting inappropriate and unprofessional
tweets, and after having been warned not to do so, i.e., for engaging in
misconduct.
Tweets included the following: “You stay homicidal Tucson.” “Hope
everyone’s having a good Homicide Friday, as one Tucson police officer
called it.”
► What to take away from these decisions: Employers need to understand that the
NLRB could take issue with any policy that might infringe on employees’ rights to
engage in protected, concerted activities.
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D.
Social Media Policies
The overly broad nature of conduct policies in employers’ handbooks has been
addressed by the NLRB in multiple decisions debating the legalities of terminating
employees for social media activities under federal labor laws.
G4S Secure Solutions and International Union SPFPA, 28-CA-23380
Policy at issue: “Do not comment on work-related legal matters without
express permission of the Legal Department.”
Findings: Provision would reasonably be read to prohibit two employees
from sending messages to each other about their issues at work via a
social networking site. Provision would reasonably prohibit a discussion
group among concerned employees on a social networking site.
► In a Nutshell
(1) Lawful: Policy limited to social media posts that are “vulgar,
obscene, threatening, intimidating, harassing, or a violation of the
Employer’s workplace policies against discrimination, harassment, or
hostility on account of age, race, religion, sex, ethnicity, nationality,
disability, or other protected class, status, or characteristic.”2
(2) Unlawful:2


Employees should generally avoid identifying themselves as the
Employer’s employees unless discussing terms and conditions of
employment in an appropriate manner.
Employees prohibited from using social media to engage in
unprofessional communication that could negatively impact the
employer’s reputation or interfere with its mission or
unprofessional/inappropriate communication regarding members
of its community.
Rulings on these facially neutral communications policies suggest that the NLRB
could strike down almost any social media policy if challenged.
If the NLRB finds that communications violating Title VII are the only communications
that can be regulated, this suggests employers are very limited in their ability to
regulate.
2
Ohioemployerlawblog.com/2012
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XIV.
Employee Rights Notice Posting*
Under a rule promulgated by the NLRB, most private sector employers will be
required to post a notice advising employees of their rights under the National Labor
Relations Act. Note, the DC Circuit Court of Appeals has temporarily enjoined the
posting rule.
00801090.DOC
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