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NLRB Places Confidentiality of Investigations at Risk

September 6, 2012 Leave a comment

In a 2-1 decision, the National Labor Relations Board in the case of Banner Health System v. James Navarro, ruled that an employer violated the National Labor Relations Act by asking the employee not to discuss the details of his complaint with other employees while it was under investigation. The NLRB ruled that the company’s generalized concern with protecting the integrity of its investigation was insufficient to outweigh the employee’s Section 7 rights, which allows the employee to engage in concerted activities for their mutual aid and protection. The Board did indicate that there were circumstances where a request for confidentiality may be legitimate, including:

  1. Where witnesses may need protection
  2. Where evidence is in danger of being destroyed
  3. Where testimony is in danger of being fabricated
  4. Where the is a need to prevent a cover-up

It made no difference to the court whether or not the “rule” was merely a suggestion or whether it had the potential of discipline attached to it. Simply requesting the confidentiality was enough to violate the Act.

As one of its penalties, the company was required to post the following notice:

The National Labor Relations Board has found that we violated Federal labor law and has ordered us to post and obey this notice.

FEDERAL LAW GIVES YOU THE RIGHT TO:

  • Form, join, or assist a union
  • Choose representatives to bargain with us on your behalf
  • Act together with other employees for your benefit and protection
  • Choose not to engage in any of these protected activities

WE WILL NOT maintain or apply the provision in our confidentiality agreement that contains the following language “Private employee information (such as salaries, disciplinary action, etc.) that is not shared by the employee.”

WE WILL NOT maintain or apply a rule prohibiting employees from discussing ongoing investigations of employee misconduct.

WE WILL NOT in any like or related manner interfere with, restrain, or coerce employees in the exercise of the rights set forth above.

BANNER HEALTH SYSTEM D/B/A BANNER ESTRELLA MEDICAL CENTER

Note: The Board also reminded employers that companies cannot restrict information such as salaries, disciplinary action, etc. without also violating Section 7. Employers are also advised to document and analyze why it may need to request confidentiality in any investigation. Finally, there is a possibility that this determination by the NLRB can be reversed by one of the circuit courts, or if things change after the November election.

Banner Health System d/b/a Banner Estrella Medical Center (28‑CA‑023438, 358 NLRB No. 93) Phoenix, AR, July 30, 2012.

NLRB Out of Control?

Here is a link to a memo from the Worklaw® Network firm Elarbee Thompson which should scare the bejesus out of any non-union employer. The current administration is clearly attempting to restructure the workplace. What it was not able to do by legislation it is now attempting to do through administrative fiat. We’ll have to see how the circuit courts respond to any claims filed. Until then it is employer beware!

Off-Duty Access Policy Violates Workers’ Rights According to NLRB

The National Labor Relations Board recently ruled in Sodexo America LLC, that USC Hospital’s off-duty access policy violated employees’ Section 7 rights under the NLRA. Please click here to read the entire article written by Franczek Radelet attorneys Neil Goldsmith and Chris Johlie.

Social Media Policy NLRB Limitations Update, Round Three

The NLRB did it again. One has to wonder if these folks have ever had to run a business. You will note that many of the policies deemed illegal were drafted by high-end counsel at major corporations who are undoubtedly aware of employee’s NLRA Section 7 and 8 rights. But what do they know? The NLRB is undercutting every level of decency corporations try to establish. It clearly has nothing to do with common sense or “real” workers’ rights, it’s simply a political football. Read it yourself and tell me you don’t feel that way too. Call your boss an asshole, trash the company brand, disclose confidential info, get fired for it and the NLRB will put you back to work! Really? And this is what we pay taxes to a broke government for?

P.S. Of course, this is my opinion only. While it may be shared by many, it is not shared by all.  Here’s a fact – I represented employees in litigation for 17 years of a short life, so I don’t want to hear about supporting some right wing agenda. I’m a pragmatist and this is flat out nonsense. You will also note they don’t add the facts or names of these cases because the actual conduct of the employees involved would be hard for most to stomach.

Guidelines

If the social media policy does not explicitly restrict protected activities, it will only violate Section 8(a)(1) upon a showing that: (1) employees would reasonably construe the language to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights.

Rules that are ambiguous as to their application to Section 7 activity, and contain no limiting language or context that would clarify to employees that the rule does not restrict Section 7 rights, are unlawful (which is where most of these policies fail). In contrast, rules that clarify and restrict their scope by including examples of clearly illegal or unprotected conduct, such that they would not reasonably be construed to cover protected activity, are not unlawful.

Reality is, none of these employees ever studies these rules or even thinks about them before they engage in their “protected” conduct.  But because of the remote chance it may actually “chill” conduct, decency goes out the window.

Given the above guidelines, the NRLB found plenty of polices wanting. Rather than waste your time summarizing all the things you can’t do I’ll focus on identifying what they said you can do. If you want to make yourself feel ill you can read the entire memo at http://www.nlrb.gov/news/acting-general-counsel-releases-report-employer-social-media-policies I have given up on trying to modify our policy for the umpteenth time. To be on the 100% safe side you can simply use the sample policy that the NLRB said is OK below.

Last note: It has been my approach to involve employees in creating these policies so they can be “self-enforced” and not viewed as some top down control document. Since the end result of such a common sense approach may in fact violate NLRB guidelines, the safest best is to go with their sample policy.

 

Sample Social Media Policy

At [Employer], we understand that social media can be a fun and rewarding way to share your life and opinions with family, friends and co-workers around the world. However, use of social media also presents certain risks and carries with it certain responsibilities. To assist you in making responsible decisions about your use of social media, we have established these guidelines for appropriate use of social media.

This policy applies to all associates who work for [Employer], or one of its subsidiary companies in the United States ([Employer]). Managers and supervisors should use the supplemental Social Media Management Guidelines for additional guidance in administering the policy.

Guidelines
In the rapidly expanding world of electronic communication, social media can mean many things. Social media includes all means of communicating or posting information or content of any sort on the Internet, including to your own or someone else’s web log or blog, journal or diary, personal web site, social networking or affinity web site, web bulletin board or a chat room, whether or not associated or affiliated with [Employer], as well as any other form of electronic communication.

The same principles and guidelines found in [Employer] policies and three basic beliefs apply to your activities online. Ultimately, you are solely responsible for what you post online. Before creating online content, consider some of the risks and rewards that are involved. Keep in mind that any of your conduct that adversely affects your job performance, the performance of fellow associates or otherwise adversely affects members, customers, suppliers, people who work on behalf of [Employer] or [Employer’s] legitimate business interests may result in disciplinary action up to and including termination.

Know and follow the rules
Carefully read these guidelines, the [Employer] Statement of Ethics Policy, the [Employer] Information Policy and the Discrimination & Harassment Prevention Policy, and ensure your postings are consistent with these policies. Inappropriate postings that may include discriminatory remarks, harassment, and threats of violence or similar inappropriate or unlawful conduct will not be tolerated and may subject you to disciplinary action up to and including termination.

Be respectful
Always be fair and courteous to fellow associates, customers, members, suppliers or people who work on behalf of [Employer]. Also, keep in mind that you are more likely to resolved work-related complaints by speaking directly with your co-workers or by utilizing our Open Door Policy than by posting complaints to a social media outlet. Nevertheless, if you decide to post complaints or criticism, avoid using statements, photographs, video or audio that reasonably could be viewed as malicious, obscene, threatening or intimidating, that disparage customers, members, associates or suppliers, or that might constitute harassment or bullying. Examples of such conduct might include offensive posts meant to intentionally harm someone’s reputation or posts that could contribute to a hostile work environment on the basis of race, sex, disability, religion or any other status protected by law or company policy.

Be honest and accurate
Make sure you are always honest and accurate when posting information or news, and if you make a mistake, correct it quickly. Be open about any previous posts you have altered.

Remember that the Internet archives almost everything; therefore, even deleted postings can be searched. Never post any information or rumors that you know to be false about [Employer], fellow associates, members, customers, suppliers, people working on behalf of [Employer] or competitors.

Post only appropriate and respectful content

  • Maintain the confidentiality of [Employer] trade secrets and private or confidential information. Trades secrets may include information regarding the development of systems, processes, products, know-how and technology. Do not post internal reports, policies, procedures or other internal business-related confidential communications.
  • Respect financial disclosure laws. It is illegal to communicate or give a “tip” on inside information to others so that they may buy or sell stocks or securities. Such online conduct may also violate the Insider Trading Policy.
  • Do not create a link from your blog, website or other social networking site to a [Employer] website without identifying yourself as a [Employer] associate.
  • Express only your personal opinions. Never represent yourself as a spokesperson for [Employer]. If [Employer] is a subject of the content you are creating, be clear and open about the fact that you are an associate and make it clear that your views do not represent those of [Employer], fellow associates, members, customers, suppliers or people working on behalf of [Employer]. If you do publish a blog or post online related to the work you do or subjects associated with [Employer], make it clear that you are not speaking on behalf of [Employer]. It is best to include a disclaimer such as “The postings on this site are my own and do not necessarily reflect the views of [Employer].”

Using social media at work
Refrain from using social media while on work time or on equipment we provide, unless it is work-related as authorized by your manager or consistent with the Company Equipment Policy.

Do not use [Employer] email addresses to register on social networks, blogs or other online tools utilized for personal use.

Retaliation is prohibited
[Employer] prohibits taking negative action against any associate for reporting a possible deviation from this policy or for cooperating in an investigation. Any associate who retaliates against another associate for reporting a possible deviation from this policy or for cooperating in an investigation will be subject to disciplinary action, up to and including termination.

Be Cautious
Develop a healthy suspicion. Don’t let anyone trick you into disclosing confidential information. Be suspicious if asked to ignore identification procedures.

 Media contacts
Associates should not speak to the media on [Employer’s] behalf without contacting the Corporate Affairs Department. All media inquiries should be directed to them.

For more information
If you have questions or need further guidance, please contact your HR representative.

According to the NLRB memo here are some more “OK” provisions:

  • Confidentiality re information directly or indirectly related to the safety performance of [Employer] systems or components for vehicles;
  • Confidentiality re [Employer] Secret, Confidential or Attorney-Client Privileged information;
  • “harassment, bullying, discrimination, or retaliation that would not be permissible in the workplace is not permissible between co-workers online, even if it is done after hours, from home and on home computers.”
  • “statements which are slanderous or detrimental to the company” that appeared on a list of prohibited conduct including “sexual or racial harassment” and “sabotage”
  • No unauthorized postings: Users may not post anything on the Internet in the name of [Employer] or in a manner that could reasonably be attributed to [Employer] without prior written authorization from the President or the President’s designated agent.
  • A prohibition on representing “any opinion or statement as the policy or view of the [Employer] or of any individual in their capacity as an employee or otherwise on behalf of [Employer].”

NLRB Suspends Implementation of Representation Case Amendments Based on Court Ruling

In response to a District Court decision issued late Monday, the National Labor Relations Board has temporarily suspended the implementation of changes to its representation case process, which had taken effect April 30.

Board Chairman Mark Gaston Pearce said the Board is reviewing the court decision and considering its response. “We continue to believe that the amendments represent a significant improvement in our process and serve the public interest by eliminating unnecessary litigation,” he said. “We are determined to move forward.”

Acting General Counsel Lafe Solomon today withdrew the guidance to regional offices he issued prior to the effective date and advised regional directors to revert to their previous practices for election petitions starting today.

About 150 election petitions were filed under the new procedures. Many of those petitions resulted in election agreements, while several have gone to hearing. All parties involved in the 150 cases will be contacted and given the opportunity to continue processing the case from its current posture rather than re-initiating the case under the prior procedure.

Click here for website version.

The above entry is the May 15, 2012 NLRB News Release.

New NLRB Election Rules Take Effect

April 30, 2012 was the effective date for the new National Labor Relations Board rules governing representational elections. All NLRB election petitions filed starting today will be subject to these new rules. In advance of the rules, the NLRB’s General Counsel’s office released a guidance memorandum last week clarifying several of the rules. The highlights of this memo include:

  • On the day an election petition is filed, a notice of hearing will be issued and a pre-election hearing will be scheduled within 7 days or 5 working days.
  • Regional Directors are encouraged to narrow the issues at a pre-election hearing and conduct a pre-hearing conference, if necessary.
  • The new rules provide that “disputes concerning individuals’ eligibility to vote or inclusion in appropriate unit “ordinarily” need not be litigated or resolved before an election. In his memo, the General Counsel said that eligibility to vote issues should only be litigated at a pre-election hearing if 10 percent or more of the unit is in dispute.
  • When deciding voter eligibility issues, the hearing officer is expected to apply the Board’s Specialty Healthcare framework. As we discussed in our Specialty Healthcare Watch blog posts on February 13th and February 14th, the Board will first look to see if the unit proposed by the Union is a “readily identifiable group” and shares a community-of-interest. If so, then the unit is valid and the employer must establish that additional employees it seeks to include share an “overwhelming community of interest.”
  • Disputes over whether an employee is a supervisor will not be considered at the pre-election hearing, if the employees in dispute constitute less than 10 percent of the voting unit.
  • The hearing officer retains discretion on whether post-hearing briefs will be filed. When post-hearing briefs are not allowed, the parties will be allowed time at the hearing to make an oral argument or submit a brief as an exhibit.
  • At the hearing, the officer should ask the parties entitled to receive a voter eligibility list (Excelsior list) if they wish to waive all or any part of the 10-day period they are entitled to have the list.
  • Pre-election appeals of hearing officer and regional director decisions will only be granted in “extraordinary circumstances.” For most intents and purposes, neither side will have meaningful review of a hearing before an election.
  • Post-election appeals are also more limited. Post-election exceptions and requests for review will now filed directly with the Regional Director, not the NLRB. The Board may grant or deny requests for review of Regional Director decisions, but a denial should be treated as a summary affirmance of the actions of the Regional Director.

Right now, the Labor Board uses a 42-day timeframe from the filing of a petition to an election. The new rules and GC memo do not specifically establish a new timeframe. However, given the changes outlined above, the 42-day period will be shortened. The precise amount of time will depend on whether 10 percent of the possible eligible voters are in dispute, thus necessitating a more complex pre-election hearing, and if the Union waives its right to the voter eligibility list for the 10-day period. A fair estimate is that the election period could be as little as 28 to 30 days with these changes. This means that employers will have fewer opportunities to communicate with employees about the pros and cons of unionization once a petition is filed, thus making it even more important that employers plan now a proactive strategy now that addresses unionization.

A court challenge to the new rules is still pending in federal court. We will inform you of that ruling when it is decided.

Article courtesy of Worklaw® Network firm Shawe Rosenthal (www.shawe.com).

District Court Invalidates Portion of NLRB Posting Rule

A federal district court judge has partially invalidated the National Labor Relations Board’s (NLRB) rule requiring private sector employers to post a notice informing employees of their rights under the National Labor Relations Act (NLRA). 

The Rule

In August 2011 the NLRB adopted a final administrative rule that requires covered employers to post a “notice to employees” regarding their rights under the NLRA.  The notice describes the NLRA and informs employees of their rights under the NLRA, including but not limited to their right to organize a union to negotiate with their employer about their wages, hours and other terms and conditions of employment.  

The NLRB’s rule also establishes several penalties for non-compliance.  Under the rule, the NLRB may find that an employer commits an unfair labor practice where it fails or refuses to post the notice.  The NLRB also may toll the NLRA’s six-month statute of limitations for filing unfair labor practice charges if employers fail to post the notice.  Finally, the NLRB also may use an employer’s failure to post the notice as evidence of an unlawful motive in unfair labor practice proceedings where motive is a disputed issue. 

At the time it adopted the rule, the NLRB announced that it would take effect on November 14, 2011.  The NLRB since delayed the rule’s implementation date to April 30, 2012, amid substantial controversy surrounding the rule.

The Lawsuits

Shortly after its adoption, the National Association of Manufacturers (NAM) and the National Right to Work Legal Defense and Education Foundation (NRTW) filed lawsuits in federal district court challenging the rule.  They argued that the NLRB lacked authority under the NLRA to promulgate the rule and that the rule violated the First Amendment. 

The District Court’s Opinion

Judge Amy Berman Jackson upheld only that portion of the NLRB’s rule that requires employers to post the notice to employees regarding their rights under the NLRA.  She determined that the NLRB is granted broad rulemaking authority under the NLRA and is not limited to enacting rules that address only particular statutory sections.  Finding that the NLRA places the NLRB “squarely at the heart of labor management relations,” the judge held that the dissemination of information about employee rights under the NLRA—as the NLRB’s rule requires—“is well within its bailiwick.” 

The judge also found that the NLRB provided a reasonable explanation for adoption of the notice requirement: in order for employees to fully exercise their rights under the NLRA, they must know that those rights exist, and requiring employers to post notices of those rights raises employee awareness.  Finally, she concluded that the NLRB did not act arbitrarily when it adopted the notice requirement because it relied on empirical and anecdotal evidence demonstrating that many employees are unaware of their rights under the NLRA—including the fact that a comparatively small percentage of private sector employees are represented by unions. 

On the other hand, the judge invalidated those portions of the rule tolling the statute of limitations for filing unfair labor practice charges and finding that failure to post the notice constitutes an unfair labor practice.  The NLRA expressly limits unfair practices to those enumerated in Section 8 of the statute, and similarly, Section 10(b) expressly establishes a six-month statute of limitations.  The judge concluded that the NLRB’s rule impermissibly expanded the reach of both of these provisions.  Notably, however, the judge found that nothing prohibits the NLRB from finding on a case-by-case basis that failure to post the notice constitutes an unfair labor practice.

Lastly, the judge rejected the claim that the NLRB’s rule violated the First Amendment because it compelled employers to speak against their will.  According to the judge, the notice constitutes “government speech” because its content and message are controlled by the government, and therefore is not subject to the First Amendment’s Free Speech Clause. 

What It Means

Although the judge invalidated two portions of the rule, she upheld the notice requirement, and that portion of the NLRB’s rule remains valid.  Further, the NLRB is permitted to rely on an employer’s failure to post the notice as grounds for the finding of an unfair labor practice on a case-by-case basis.      

As a final note, the plaintiffs in this matter did not specifically challenge that aspect of the NLRB’s rule that permits the NLRB to use an employer’s failure to post the notice as evidence of unlawful motive in its unfair labor practice proceedings.  As a result, the judge found that that portion of the rule remains valid.

For now, employers who are covered by the NLRA must plan to post the notice on April 30. Another challenge to the rule is pending in a federal district court in South Carolina. We will continue to monitor that case and will keep you updated as to further developments.

By Jennifer Dunn, Amy Moor Gaylord, Chris Johlie

Article courtesy of Worklaw Network firm Franczek Radelet.