National Labor Relations Board

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Acting Chair Dissents Point to Likely Changes to Board Election Rules and Employee Handbook and Email Standards.”

Following is an excerpt:

NLRB Acting Chair Philip Miscimarra has given the clearest indication to date of what steps a new Republican majority is likely to take to reverse key elements of the Labor Board’s hallmark actions of the Obama administration once President Trump nominates candidates for the Board’s two open seats and the Senate confirms. In each of these cases, Miscimarra highlighted his earlier opposition to the majority’s changes in long standing precedents and practices. …

Read the full post here.

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Can Your Corporate Social Responsibility Policy Make You a Joint-Employer With Your Suppliers? The NLRB May Find That It Does

Following is an excerpt:

The National Labor Relations Board (NLRB or Board), which continues to apply an ever expanding standard for determining whether a company that contracts with another business to supply contract labor or services in support of its operations should be treated as a joint employer of the supplier or contractor’s employees, is now considering whether a company’s requirement that its suppliers and contractors comply with its Corporate Social Responsibility (CSR) Policy, which includes minimum standards for the contractor or supplier’s practices with its own employees can support a claim that the customer is a joint employer. …

Employers are well advised to review the full range of their operations and personnel decisions, including their use of contingent and temporaries and personnel supplied by temporary and other staffing agencies to assess their vulnerability to such action and to determine what steps they make take to better position themselves for the challenges that are surely coming.

Read the full post here.

Our colleagues Adam C. Abrahms and Steven M. Swirsky, attorneys at Epstein Becker Green, have a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “NLRB Drops Other Shoe on Temporary/Contract Employee Relationships: Ruling Will Require Bargaining In Combined Units Including Employees of Multiple Employers – Greatly Multiplies Impact of BFI Expanded Joint Employer Test.”

Following is an excerpt:

The National Labor Relations Board (“NLRB” or “Board”) announced in its 3-1 decision in Miller & Anderson, 364 NLRB #39 (2016) that it will now conduct representation elections and require collective bargaining in single combined units composed of what it refers to as “solely employed employees” and “jointly employed employees,” meaning that two separate employers will be required to join together to bargain over such employees’ terms and conditions of employment.” …

The potential for confusion and uncertainty is enormous. In an attempt to minimize these concerns, the Board majority stated that the so-called user employer’s bargaining obligations will be limited to those of such workers’ terms and conditions that it possesses “the authority to control.”

Read the full post here.

Our colleague Steven M. Swirsky, a Member of the Firm at Epstein Becker Green, has a post on the Management Memo blog that will be of interest to many of our readers in the health care industry: “Federal Appeals Court Sides with NLRB – Holds Arbitration Agreement and Class Action Waiver Violates Employee Rights and Unenforceable.

Following is an excerpt:

The US Court of Appeals for the Seventh Circuit in Chicago has now sided with the National Labor Relations Board (NLRB or Board) in its decision in Lewis v. Epic Systems Corporation, and found that an employer’s arbitration agreement that it required all of its workers to sign, requiring them to bring any wage and hour claims that they have against the company in individual arbitrations “violates the National Labor Relations Act (NLRA) and is unenforceable under the Federal Arbitration Act FAA).” …

The decision of the Seventh Circuit, finding that the Board’s view was not inconsistent with the FAA, sets the ground for continued uncertainty as employers wrestle with the issue.  Clearly, the question is one that is likely to remain open until such time as the Supreme Court agrees to consider the divergent views, or the Board, assuming a new majority appointed by a different President, reevaluates its own position.

Read the full post here.

My colleagues Steven M. Swirsky and Adam C. Abrahms published a Management Memo blog post that will be of interest to many of our readers: “NLRB Issues Critical Guidance on Employer Handbooks, Rules and Policies Including “Approved” Language.”

Following is an excerpt:

On March 18, 2015, NLRB General Counsel Richard F. Griffin, Jr. issued General Counsel Memorandum GC 15-04 containing extensive guidance as to the General Counsel’s views as to what types employer polices and rules, in handbooks and otherwise, will be considered by the NLRB investigators and regional offices to be lawful and which are likely to be found to unlawfully interfere with employees’ rights under the National Labor Relations Act (“NLRA” or the Act”).

This GC Memo is highly relevant to all employers in all industries that are under the jurisdiction of the National Labor Relations Board, regardless of whether they have union represented employees.

Because the Office of the General Counsel investigates unfair labor practice charges and the NLRB’s Regional Directors act on behalf of the General Counsel when they determine whether a charge has legal merit, the memo is meaningful to all employers and offers important guidance as to what language and policies are likely to be found to interfere with employees’ rights under the Act, and what type of language the NLRB will find does not interfere and may be lawfully maintained, so long as it is consistently and non-discriminatorily applied and enforced.

Read the full blog post here.

For 2 days, the National Labor Relations Board (NLRB) heard from speakers on its proposed rules to accelerate the processing of union representation petitions and quicken the timing of elections.  The speakers ranged from several labor unions, including the UFCW, SEIU, CWA and AFL-CIO as well as a number of trade associations, including National Federation of Independent Businesses, Coalition for a Democratic Workplace, National Association of Manufacturers, U.S. Chamber of Commerce, and EBG client, National Grocers Association (NGA).  The positions of the parties were largely split between the labor unions applauding the NLRB’s proposed rule on making elections faster; whereas, the trade associations and management attorneys emphasizing that the NLRB’s proposed rule was unnecessary and a solution in search of a problem.

EBG attorney, Kara M. Maciel, represented the voice of NGA on three separate panels.  First, she argued that the NLRB’s proposed rule requiring employers – for the first time – to submit a written position statement within 7 days of the union’s petition setting forth the employer’s entire legal argument, or risk waiver later, is unduly burdensome and risks that the process leading to a pre-election hearing will become more adversarial and less focused on reaching a negotiated pre-election stipulation.  Under current procedures, over 90% of petitions are stipulated to without a pre-election hearing, but under the NLRB’s proposed rule, employers could feel pressured to go to a hearing in light of the written position statement requirement. 

Second, Maciel testified that the election date should not be accelerated from the current 34 day median to 10-21 days contemplated by the rule.  “Hasty decisions are not good decisions” and she noted that “common sense dictates that the greater the time an individual has to inform himself, and to reflect upon and consider all aspects of a decision, the more likely the decision will be a true reflection of the individual’s interests.”  NGA is concerned about the due process rights impairing an employer’s protected 8(c) rights under the National Labor Relations Act if there is not sufficient time to communicate with employees about a union petition for representation.

Finally, Maciel expressed concern over the proposed rules compulsory disclosure of employee’s personal and confidential e-mail accounts and phone numbers on voter lists.  The non-consensual disclosure constitutes a gross invasion of employees’ privacy and opens employees up to potential use and abuse of their personal information.

The NLRB will now consider all the written and oral comments submitted by the public on the proposed rules; however, it is widely expected that the NLRB will adopt the rules as proposed.  Following the rule-making process, it is likely that trade associations could seek to enjoin implementation of the rule through a court challenge.  In the meantime, all employers should brace themselves for the rule and implement training and education for their management team on how to respond to union organizing.   

For more information on NLRB’s two-day public meeting, please click here.

By Steven M. Swirsky, Adam C. Abrahms, Kara M. Maciel and Casey M. Cosentino

As previously predicted by the Management Memo on August 1, 2013 and October 30, 2013, the National Labor Relations Board (the “Board”) issued a second Notice of Proposed Rulemaking (“NPRM”) to amend its existing rules and regulations governing union elections procedures. If they look familiar when you see them, there is a good reason for that: you have seen them before.

As readers of the Management Memo are well aware, the NPRM is the latest development in the long saga of organized labor’s attempts to “fix” the representation election process in its favor. Most significantly, the Board’s current attempt only comes after having its more modest 2011 attempt struck down by a federal judge.

The present proposal is identical “in substance” to the Board’s original proposals first contemplated on June 22, 2011, and as such are more aggressive than the Rules ultimately adopted on December 21, 2011, and later struck down. The Board claims the proposed amendments are necessary to, among other things, facilitate the swift resolutions of questions concerning representation, simplify representation-case procedures, eliminate needless litigation, and consolidate all requests for review of regional directors’ determinations into one post-election request. However, if adopted as written, the proposed rules will radically up-end 75 years of Board practice and make it considerably easier for unions to organize employees and win elections.

History of Proposed Rule

The Board first contemplated the proposed amendments in a notice of proposed rulemaking on June 22, 2011. Following a period of public comment, the Board issued a final rule on December 22, 2011, that adopted some of the proposed amendments but deferred other more controversial aspects of the proposed amendments for further consideration. The final rule was immediately challenged in federal court. See Chamber of Commerce of the U.S. v. NLRB, 879 F. Supp. 2d 18, 21, 24 (D.D.C. 2012). In May 2012, the D.C. District Court struck down the final rule on procedural grounds. In response, the Board suspended the implementation of changes to its election representation case process.

Proposed Amendments to the Election Procedure

To the favor of unions, the proposed amendments announced this week would significantly change the existing procedures for union elections in the following ways:

  • Permit electronic filing of election petitions.
  • Require pre-election hearings to be held within 7 days after a hearing notice is served, shortening the time period between the petition and election.
  • Require employers to file a detailed statement of position on any and all issues involved in the petition before the hearing commences (i.e., within 7 days of first receiving notice of the petition). Failure to present an issue in the statement would constitute waiver of the issue in all future proceedings.
  • Grant hearing officers the authority to limit the issues to be heard at the hearing, depriving employers of their ability to litigate valid legal/factual positions prior to an election.
  • Defer resolution of voter-eligibility issues to post-election challenges until after an election, replacing the longstanding practice of having a pre-election hearing to determine such issues. This will allow unions to claim that some supervisors should be included in the bargaining unit, which could prevent an employer from utilizing them in the campaign to communicate its own position to the employees they supervise.
  • Grant hearing officers the authority to deny an employer the ability to file a post-hearing brief.
  • Eliminate an employer’s ability to seek Board review of a Regional Director’s rulings, which would also reduce the time between the petition and election.
  • Shorten the time for holding an election to as early as 10 days after the Regional Director’s direction of election (down from the typical 25 to 30 day minimum that now exists)
  • Require an employer to provide the NLRB with the list of voters’ names and addresses within 2 days after the Regional Director’s direction of an election instead of 7 days.
  • Require employers to provide the phone numbers and email addresses of all eligible voters as well as specifying each employee’s work location, shift, and classification. Currently, employers must only provide name and mailing address to the NLRB, which it then provides to the union. Since unions will use be able to use this information during the days before the election, it is feared that instances of organizers harassing and coercing employees will significantly increase.
  • Grant the Board discretion to deny review of post-election rulings. Currently, the Board is required to decide post-election disputes.

The Board’s False Pretenses and True Intended Harm of “Ambush” Elections

The Board asserts these election “fixes” are necessary to address alleged long delays in the representation process; however, such delays are rare. To the extent that the NPRM seeks to address election delays, objective data of NLRB elections conducted between 2008 and 2010 shows that such delays occurred less than 10 percent of the time. In fact, currently median time between petition and election is only 38 days and almost all elections occur within 56 days. The Board’s current proposal, however, could shorten that period to 10 to 21 days, which essentially eliminates the ability for employers to make a full and meaningful presentation of their position or employees to make a truly informed choice.

Typically, union organizers campaign under the radar for months before a petition is filed and unions wait until they believe that they have the support of the majority of the employees in a unit before they file a petition. Shortening the election period so drastically will erode an employer’s ability to respond to the union’s propaganda and communicate its position on union representation. Employees will vote without having the benefit of hearing the employer’s position. This contravenes the express purpose of the Act, which is to protect employee rights— not union rights and would gut the right that employers are granted by the Act to communicate their positions to employees. This one-sided campaign will almost certainly result in more election victories for unions and less real choice for employees.

Management Missives

It is with intention that the Board’s proposed rules will significantly alter the entire union representation election process in favor of unions. Although it is a proposed rule at this point, and the Board will be accepting public comment through April 7, 2014, with a public hearing that same week, it is likely that the final rule will be issued not long thereafter. To prepare for the Board’s “ambush” election rules, employers should promptly adopt any or all of the following strategies:

  • Examine your workforce for potential vulnerability to union organizing, including wage and hour violations or uncompetitive wages or benefits.
  • Review and update workplace policies that become relevant during union organizing such as solicitation/distribution, electronic communications, and social media.
  • Assess your workforce for potential bargaining unit issues like identifying who are supervisors and which employees share a “community of interest.”
  • Train your managers and supervisors on recognizing early warning signs of union organizing and responding lawfully to union campaigns.
  • Contact legal counsel with any questions or for any assistance with ensuring you are prepared to respond to an organizing campaign consistent with the proposed rules.


Our colleague Frank C. Morris, Jr., at Epstein Becker Green wrote the December issue of Take 5, with five key action items for employers in 2014. Following is an excerpt:

It’s December, and human resources professionals and law departments are reflecting on the issues addressed in 2013 and giving thanks for incident-free holiday parties. But the big question is this: What issues should get priority attention for 2014 as part of a proactive approach to workplace issues and limiting potential employment and labor law claims? This month’s Take 5 provides a “Top 5″ list of action items to maximize the use of your time and resources for optimum results in 2014. …

  1. Consider Whether Your Organization Should Adopt Mandatory Arbitration Agreements and Seek to Bar Class/Collective Actions in 2014
  2. Enhance the Accessibility of Your Organization’s Website to Individuals with Disabilities
  3. Ensure That Proper Exempt/Nonexempt and Independent Contractor/Employee Determinations and Updated Job Descriptions Are in Place in 2014
  4. Update Confidentiality and Non-Compete Agreements to Better Protect Intellectual Property and Human Capital Assets in a High-Technology, BYOD, Mobile World
  5. Consider Key Employer ACA Issues for 2014

Read the full newsletter here.

It is no secret that the National Labor Relations Board (the “Board”) is engaged in a purposeful and partisan attempt to issue rules and decisions that benefit unions, often to the detriment of employers, including attempts by the Board to assert itself into non-union workplaces.    The decisions that the Board has issued over the past few weeks illustrate that this trend is likely to continue during President Obama’s second term.  Indeed, the holiday season has provided unions with additional reason to celebrate as, among other things, the Board has overturned decades of precedent with regard to the law surrounding check-off of union dues following expiration of a collective bargaining agreement and the confidentiality of witness statements.  Here is a summary of several of the Board’s latest pro-union decisions and their potential impact on employers:

1)      Confidentiality of Witness Statements.  For 34 years the Board has recognized witness statements collected by an employer during the course of an internal disciplinary investigation to be privileged and not subject to disclosure to the Union.  But in the recent decision of Piedmont Gardens the Board overturned this bright line rule and replaced it with a balancing test that weighs the union’s need for the information against the employer’s legitimate and substantial confidentiality interests.  This decision may decrease the likelihood that employee witnesses will be willing to participate in investigations, and could prolong and add to the cost of arbitrations as the parties litigate whether witness statements are subject to disclosure.  It is also likely to increase the number of cases that unions will take to arbitration.  We also note that this decision comes on the heels of the Board’s decision limiting an employer’s ability to require employees to keep confidential the contents of an internal investigation.

2)      Union Dues.  In WKYC-TV, Gannet Co. Inc., the Board overturned 50 years of NLRB precedent by ruling that an employer must continue to deduct dues after a collective bargaining agreement has expired.  Previously, if the agreement expired, the employer could cease dues deductions, which served as an important and effective negotiating strategy that forced expeditious bargaining.  Under the new rule, employers are deprived of this bargaining tool.

3)      Social Media.  The Board continues to take an ever broader view as to when employees who comment or engage in discussions concerning their employers and their jobs on Facebook are engaged in concerted, protected activity, even in non-union workplaces.  In Hispanics United of Buffalo, Inc., an employee at a non-union organization threatened to complain to management about her coworkers lack of assistance.  One coworker posted a message on Facebook complaining about this employee and, in her post, asked how her coworkers felt about the complainant.  Four co-workers commented on the post.  The employer subsequently terminated the five employees who posted on Facebook, and they promptly filed an unfair labor practice charge with the Board alleging that they had engaged in concerted protected activity under Section 7 of the National Labor Relations Act.  The Board agreed with the employees and ordered the employer to reinstate them with backpay.

Even where the Board finds that a discharge was lawful and not based on an employee’s protected activity, the social media policy underlying the termination decision may nonetheless be found to be unlawfully broad and violative of the Act.  Such was the Board’s ruling in Knauz Motors, Inc. in which the Board upheld a termination decision, but held that a “courtesy” policy in the company’s employee handbook was unlawfully broad because employees could reasonably construe its broad prohibition against “disrespectful” conduct and “language which injures the reputation of the company” as infringing on employees’ Section 7 rights to engage in concerted activity about their terms and conditions.

4)      Bargaining Over Discretionary Discipline.  In Alan Ritchey, Inc. the Board ruled that an employer whose employees were recently unionized but are not yet covered by a collective bargaining agreement with a grievance and arbitration procedure, must notify the union and offer it the opportunity to bargain before enforcing discretionary discipline on its union represented employees.  This decision does not apply to oral or written warnings for misbehavior, but does apply to changes in workplace policies, discretionary employee suspensions, demotions, and terminations that are made on a case-by-case basis.

5)      Taxes on Backpay Awards.  Under the Board’s recent decision in Latino Express, employers will be required to compensate workers for any additional taxes incurred as a result of their receipt of backpay in a lump sum.  In addition, employers ordered to pay back wages must file a report with the Social Security Administration that allocates the back wages to the years in which they were or would have been earned.  This decision is intended to address a situation in which an employee receives a lump sum backpay award covering more than one calendar year that pushes the worker into a higher tax bracket and results in the worker paying more in income and social security taxes than if the money had been paid as wages in the year(s) in which it was earned.

Each of these decisions will make it more difficult for employers to defeat aggressive union tactics and they increase the arsenal of weapons available to unions seeking to organize and represent workers.  Over the next few years, expect the Board to continue issuing decisions and rules that favor unions.  The Board’s regional offices prevailed 90.1% of unfair labor practice and compliance decisions in 2012.  Accordingly, it is imperative that employers plan for union organizing in advance and train managers on how to avoid committing unfair labor practices in both unionized and non-union settings.

The Board is targeting all employers, not just those who are likely to face a union organizing campaign.  Employees should audit and revise their policies to prepare in advance for the Board’s ramped-up enforcement efforts.

Over the past several weeks the National Labor Relations Board (the “Board”) has come down with a series of decisions that attack the very fabric of the employee-employer relationship: at-will employment.  Then, in nothing short of a Las Vegas-style double or nothing gambit, the Board did not stop there, but instead doubled down on their offensive against employers by rendering unlawful the confidentiality requirements (pdf) that many health care employers follow in internal investigations.

Almost all employers have a provision in its employee handbook explaining that employees are employed on an at-will basis, meaning that either the employee or the company may terminate the employment relationship at any time with or without notice and for any or no reason.  To ensure that the at-will employment relationship is not altered through unintended or unauthorized comments to an employee by a rogue manager, employers typically include language in their handbooks stating that the at-will relationship cannot be altered or modified without the express written approval of a designated corporate representative, such as the president or another senior level executive.  In a string of recent cases, the Board has taken the position that such  “cannot be altered or modified” disclaimer language is an unlawful violation of Section 7 of the National Labor Relations Act (the “Act”).  Section 7 of the Act gives employees the right to engage in protected concerted activity for the purpose of improving their wages, hours, or working conditions.  According to the Board, this language chills the exercise of Section 7 rights because forming a union would be futile in that the employer would not agree to  a collective bargaining agreement containing limitations on the at-will employment, such as a “just cause” standard and because such senior level executives are rarely available to participate in collective bargaining or to sign collective bargaining agreements. While the Board has indicated that it is not holding that at-will language is per se unlawful and violative of the Act, it has made clear that such clauses will be read closely on a case by case basis.

In a separate decision, the Board also challenged a health care company’s practice of requiring all employees who participate in an internal investigation to keep the contents of the investigation confidential and not disclose it to or discuss it with other employees.  The Board ruled that a uniform policy of requiring confidentiality violates the employees’ right to engage in concerted activity under Section 7 of the Act because it prevents them from talking to one another about problems in the workplace.  Instead, an employer may only require confidentiality if it has a legitimate and specific reason for the requirement, as examined on a case-by-case basis.  The Board explained in this decision that the factors that may permit an employer to impose a requirement of confidentiality are the following:

  • the need to protect witnesses;
  • a likelihood that evidence may otherwise be destroyed;
  • the threat that subsequent testimony would be fabricated;
  • or the need to prevent a cover-up.

One additional challenge for employers is that the Board’s decision flies in the face of guidance previously issued by the EEOC that investigations should be kept confidential to the extent possible, especially if an employer is hoping to take an advantage of the FarragherEllerth affirmative defense in harassment cases.

These decisions should be viewed as part of a broader overall plan by the Board to make itself relevant to non-union workforces.  Unless the composition of the Board changes with a new administration, we expect the Board to continue to target the policies of non-union employers in the months ahead.  In the meantime, employers should review their policies and employee handbooks in conjunction with counsel to ensure that they are narrowly tailored so as to withstand the scrutiny of the Board.  In addition, employers should consult with counsel before disciplining or terminating an employee for violating of any of these policies.