The year that just ended was filled with an amazing volume of significant developments coming from the National Labor Relations Board affecting private employers. Those developments were driven by a Board that was never up to its full complement of five members – until now.
Recess Appointments to the NLRB Bring Controversy
On January 4, 2012, President Obama made three Recess Appointments to the NLRB finally reaching the full complement of five Board members. The last time the NLRB had five members was in August 2010. At one time, the NLRB was down to only two members, and the Supreme Court held that, because there were only two members, there was no quorum that legally prevented the NLRB from deciding cases. These Recess Appointments (two Democrats with union backgrounds and one Republican) were sworn in on January 10 and bring the makeup of the Board back to the traditional balance with the majority of three members belonging to the political party of the President. The Recess Appointments were controversial because they were made while the Senate was technically not in recess. Legal challenges to the appointments will be sure to make the NLRB a battle ground in the coming year. If the challenges are successful, the NLRB will be back down to two members, and any decisions made while operating with the three Recess Appointees may not be valid due to lack of a legal quorum. It will be an interesting year indeed.
In the wake of the Recess Appointments controversy, there has been at least one important recent decision that suggests that employers will continue to see further liberal interpretation of existing law favoring employees and unions.
Employee Waivers of Right to File Class Actions Held to Be Unlawful
On January 3, 2012, the last day of Democrat Craig Becker’s tenure as a member of the NLRB, an important decision was issued preventing mandatory employee waivers of the right to file class actions. In this case, a non-union employer required employees to sign an agreement that required arbitration of all employment claims. The agreement provided that only individual claims could be filed and that the arbitrator did not have the authority to consolidate claims into a class action or award class-wide relief. The NLRB ruled that any arbitration agreement that could be interpreted as preventing an employee from filing a charge with the NLRB or from pursuing class and collective claims in arbitration and in court is an unlawful interference with employee rights under the NLRA to engage in “concerted activity.” The NLRB did note that mandatory arbitration of individual and group claims was okay as long as the employer leaves open the right to go to court for class and collective claims. With this ruling, mandatory arbitration agreements with employees will need to be reviewed to ensure compliance with the NLRA. This decision is sure to be challenged if, for no other reason, Republican member Hayes recused himself, leaving only two members of the Board to render the decision. In other words, there is a real question whether the two members of the NLRB who issued this decision had the legal authority to do so. We will be watching as this issue develops.
D. R. Horton, Inc., (NLRB January 3, 2012)
There Is Some Good News for Employers . . .
Even with all the uncertainty and controversy with the NLRB, there is some good news to report.
Cussing out the Boss May Not Be Okay after All!
In late 2010, we reported on a very disturbing case decided by the NLRB that essentially held that an employee couldn’t be fired if he cussed out the boss to his face. In that case, a non-union employee approached his boss to complain about breaks, restroom facilities and his commission compensation. His boss said if he disliked the way things were run, then he didn’t have to work there. That led to the employee’s loud outburst where he told his boss – to his face – that he was a “f***ing crook” and an “a**hole” and that the boss “would regret it if the employee was fired.” The employee was fired. The NLRB, over the dissent of the Republican member Hayes, ordered the employer to rehire the employee and pay him over two years’ back pay. Needless to say, the decision caused an uproar, and the employer appealed. On December 19, 2011, the Ninth Circuit Court of Appeals (an often very liberal court) sent the case back to the NLRB because it said that the NLRB failed to properly weigh whether the employee’s outburst was so menacing so as to forfeit his protections under the NLRA. The court said that the NLRB’s reasoning was internally inconsistent and it had failed to credit the ALJ’s credibility, finding that the outburst was indeed “belligerent” and “menacing.” Given the current makeup of the NLRB, it is still up in the air whether it is okay to cuss out the boss. We will be watching this one, too.
Plaza Auto Center, Inc., v. NLRB (9th Cir., December 19, 2011)
NLRB General Counsel Recommends Dismissal of Three Facebook Cases
To the pleasant surprise of private employers everywhere, the NLRB General Counsel’s Division of Advice recently recommended the dismissal of three unfair labor practice charges involving employee use of the social networking site Facebook. The employers in all three cases were accused of violating employees’ rights to engage in protected concerted activity for “mutual aid and protection” under Section 7 of the NLRA when they terminated employees who posted critical or disparaging remarks about the employer or its managers on Facebook.
Accountant Lawfully Terminated for Accusing Employer of Fraud
The first case involved an accountant who used her Facebook page to suggest that her employer was engaged in fraudulent accounting practices. Almost immediately after the accountant wrote this post, the employer met with her to explain the process behind the accounting practice and the legal basis for it. Nonetheless, when asked to remove the post from Facebook, the accountant refused, in response to which the employer terminated her employment. Finding that the post in no way constituted protected concerted activity (i.e., her post did not solicit support or incite activity by her co-workers), the General Counsel concluded that the accountant’s termination was not a violation of the employee’s rights.
Bank Employee’s Disparaging Remarks about Colleagues Deemed Unprotected
The second case involved a bank employee who posted disparaging remarks about her colleagues on Facebook. When she refused to apologize to all of her colleagues at the bank, the employee was terminated. Based on the facts that only the terminated employee and one other employee were even involved in the Facebook exchange and no other employees joined in the discussion, the General Counsel concluded that the terminated employee’s disparaging remarks were not protected concerted activity under Section 7.
Therapist’s Online Criticisms of Supervisor Justified Termination
The third and final case involved the termination of an employee who disparaged her supervisor on Facebook and the unlawful surveillance that her employer allegedly engaged in to discover the disparaging post. In the General Counsel’s view, the terminated employee’s Facebook post did not constitute protected concerted activity because the only other employee who commented on the post testified that he did not view it as an attempt to initiate group activity. The terminated employee’s comments were made “solely by and on behalf of the employee herself” and, therefore, were not concerted. Moreover, because the employer learned of the post through another employee and had not solicited the information, the General Counsel concluded that the employer had not engaged in unlawful surveillance or unlawfully “created the impression” of surveillance.
These three opinions are an encouraging sign that the NLRB is beginning to appreciate the complexities of dealing with social media in the workplace and, more importantly, the valid interest that employers have in curtailing overly critical or disparaging remarks by employees who have no intention of inciting protected group activity. Nonetheless, employers must continue to be cautious when attempting to restrict the content of employees’ work-related discussions, whether on Facebook or anywhere else. Importantly, this word of caution extends to social media policies and other work rules, which must be carefully crafted so as to avoid any overly broad (and therefore unlawful) restrictions on employees’ rights to engage in protected concerted activity.
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section.
