NLRB Clarifies Double Eagle Rule

Employees of a condominium complex were governed by an employee manual that included a rule prohibiting employees from being on the property unless working or picking up a paycheck. A maintenance employee took a personal leave to deal with a legal claim that had been raised against him. While on leave, the employer was informed that the employee had been seen loitering on the premises and discussing his legal issues with residents. The employee was warned about this conduct, but was subsequently found engaging in the same conduct. As a result, the employee was reassigned to a less desirable position. The employee later resigned. An unfair labor practice charge was filed against the employer based on the argument that the rule under which the employee was punished was overly broad. The administrative law judge hearing the matter ruled that the rule was overbroad and that discipline imposed pursuant to an unlawfully overbroad rule is itself unlawful. This premise is commonly referred to as the “Double Eagle rule.” The National Labor Relations Board (NLRB) reversed, and in doing so provided some clarification regarding the proper application of the Double Eagle rule. Specifically, the NLRB ruled that the rule does not apply where the conduct for which discipline was imposed is “not similar” to conduct protected by Section 7 of the National Labor Relations Act. Additionally, an employer may raise an affirmative defense by establishing that the employee’s conduct actually interfered with his or her own work, or that of others, and that such interference, rather than the violation of the rule, was the true reason for the discipline. Employers should strive to have narrowly tailored workplace rules that specifically fit their workplaces, and to ensure that the basis for any termination based on misconduct is well-documented, including the effects of that misconduct on the business.

NLRB Releases Report on Social Media Cases

On August 18, 2011, the National Labor Relations Board’s (NLRB) Acting General Counsel issued a report that highlights numerous cases involving the use of social media by both employees and employers and the effect of such use on the workplace. More ›

Employee Statement Advising Supervisor to Bring Boxing Gloves is Metaphoric

A construction company issued warnings to its electricians for taking breaks that exceeded a 15-minute limit and told them that future infractions would lead to progressive discipline. One electrician responded that if he was laid off for such an infraction “it’s going to get ugly” and that the supervisor “better bring [his] boxing gloves.” A second electrician echoed the statement that “it’s going to get ugly.” Both electricians were fired for making statements that managers interpreted as physical threats in violation of the company’s zero-tolerance policy for workplace violence. The electricians successfully challenged their terminations as violations of Section 7 of the National Labor Relations Act (NLRA), which protects concerted activity. The U.S. Court of Appeals for the D.C. Circuit upheld the National Labor Relations Board’s decision reinstating the employees. The court held that when viewed objectively, the statements were metaphoric figures of speech that expressed the electrician’s willingness to “fight” for better work conditions. The statements were “single, brief, and spontaneous reactions” of resistance that were not so egregious as to remove them from the NLRA’s protections. Employers encountering similar employee statements are advised to object to them as acts of insubordination, as well as threats of physical violence. Although the court stated that the electricians’ statements were not obscene, it recognized that the NLRA does not tolerate “obscene insubordination” simply because it is not accompanied by physical threats.

National Labor Relations Board Identifies new test for Assessing Bargaining Units in Non-Acute Care Facilities

In a decision made public on August 30, 2011, the National Labor Relations Board has stated that it will no longer apply a special standard when determining whether bargaining units in non-acute health care facilities are appropriate under the National Labor Relations Act. Instead, employees in health care facilities other than hospitals will be subject to the same “community-of-interest” standard that the Board utilizes in other workplaces. More ›

NLRB may Delegate Power to its General Counsel to seek Injunctive Relief from District Courts

In 2002, a union local began to organize employees at a hotel. Following failed bargaining between the union and the hotel, the union filed numerous unfair labor practice charges with the regional director of the National Labor Relations Board (NLRB). The regional director investigated the claims and issued an unfair labor practices complaint. After a 13-day hearing, an administrative law judge determined that the hotel had violated numerous sections of the National Labor Relations Act (NLRA) and recommended that the NLRB order the hotel to cease and desist from the unfair labor practices and take other remedial actions. The hotel filed extensive objections to the ruling. As the case remained pending before the Board, the regional director filed a petition with the district court for injunctive relief under Section 10(j) of the NLRA. The hotel opposed the petition, claiming that the district court lacked subject-matter jurisdiction because the regional director had failed to obtain the Board’s approval to file the Section 10(j) petition. The U.S. Court of Appeals for the Ninth Circuit held that although the Board may reserve the ultimate decision of whether to petition for Section 10(j) relief in individual cases for itself, it may also exercise its power to petition for such relief by authorizing the general counsel to decide in which case to seek relief on the NLRB’s behalf. The Ninth Circuit determined that as far as delegation to subordinates is concerned, express statutory authority for delegation was not required. As such, the general counsel is the NLRB’s subordinate insofar as Section 3(d) of the NLRA requires the general counsel to perform “such other duties as the Board may prescribe.”

NLRB sets Aside Decertification vote Where Union Promised to Waive Unpaid Dues

An employer was required under its union contract to deduct monthly union dues from employees’ paychecks. The employer failed to deduct the dues for several consecutive months. Realizing the mistake, the union sent an e-mail to the employer, and the employer immediately resumed the deductions without collecting the back dues. The union neither attempted to collect the delinquent dues nor notified members about the error. Six months later, a new employer took over the union contract and filed a petition to decertify the union. During the decertification campaign, the union distributed a flyer notifying employees about the delinquent dues and promising that the dues would never be collected if the employees voted to retain the union. The employees subsequently voted in favor of the union. The employer objected to the outcome, arguing that the union’s promise to waive dues violated the National Labor Relations Act (NLRA). Under the NLRA, neither a union nor an employer may make or promise to make a “gift of tangible economic value” as an inducement to win support during a decertification campaign. The National Labor Relations Board reasoned that employees reasonably would infer under the circumstances that the purpose of the union’s promise was to induce them to support the union, and that the promise therefore “constituted an objectionable grant of a tangible financial benefit.” As a result, the Board ordered that the election should be set aside and a second election held. Employers should keep a close watch during decertification campaigns to ensure that unions do not promise any financial benefit to union members, but must also remain aware that employers themselves are subject to the same requirement.

Contractor’s Employees Deemed "Statutorily Protected Employees" and Permitted to Handbill Under new "Access Standard"

A group of restaurant employees engaged in handbilling on casino premises as a part of an organizing campaign by Las Vegas unions. Although not employed by the casino itself, the employees worked on casino property and handbilled in front of restaurants operated by their employer on behalf of the casino. The casino asked the employees to cease their organizing efforts. The employees refused, prompting a visit from the police, who issued citations and removed the employees from the premises. The employees alleged unfair labor practices against the casino. The National Labor Relations Board (NLRB) determined that the casino had, in fact, violated the National Labor Relations Act (NLRA) by prohibiting the handbilling and that the restaurant employees were rightfully on the property as they worked regularly and exclusively on it. In reaching its decision, the NLRB developed an “access standard,” which strikes a balance between the rights of the contractor employees and the property owner’s rights. Under the “access standard,” the property owner may lawfully exclude handbilling on its property, but only where the property owner demonstrates that the activity significantly interferes with the use of the property or where exclusion is justified by a legitimate business reason. Here, the NLRB determined that the casino failed to make the requisite showing and thus violated NLRA Section 8(a)(1) when it prohibited the restaurant employees from handbilling on the premises. Employers should be mindful that the right to organize may extend to more than the employer’s own employees, and that the employer’s contractor’s employees may be “statutorily protected” in their organizing activities.

New York, New York Hotel and Casino, 356 NLRB No. 109 (NLRB Mar. 25, 2011)