By: Daniel Finerty

On August 27, 2015, the National Labor Relations Board (Board) invalidated an employer’s confidentiality policy that was in place to maintain the integrity of its internal investigations. The Board determined both the original and revised confidentiality policies used by the Boeing Company unlawfully restrained employee rights to discuss the terms and conditions of their work and to engage in protected concerted activities under the National Labor Relations Act. However, the Board’s decision has clarified the muddy waters surrounding the effective use of confidentiality policies during internal investigations into sexual harassment, workplace threats and other employee misconduct.

Boeing’s original policy identified its interest in protecting the confidentiality of an internal investigation. It explained that such investigations typically dealt with “sensitive information and may be conducted under authorization of the Boeing Law Department.” As a result, the policy directed employees “not to discuss this case with any Boeing employee other than company employees who are investigating this issue or your union representative, if applicable.” The Board ruled that this policy potentially restrained employee speech. The Board rejected Boeing’s justifications, that the protected witnesses, victims, or employees from retaliation, harassment and rumors.

The Board also rejected Boeing’s revised confidentiality policy. In the revised policy, Boeing recommended that employees refrain from discussing an investigation. This slight change did not cure the Board’s initial concerns. Even the revised policy reasonably tended to inhibit employees’ rights to engage in activity protected by the NLRA.

A blanket confidentiality policy is unlikely to survive Board scrutiny regardless of whether or not it carves out discussions with a union representative. The Board has reaffirmed its position that “[e]mployees have a Section 7 right to discuss employer investigations with their coworkers.” To comply with the Board’s recent decisions, while protecting employees involved in an investigation, employer’s may want to consider:

• Eliminating blanket confidentiality policies applicable to all investigations.
• If an employer has specific reason to believe that any of the following circumstances may exist or arise during an investigation, a basis for an employer’s concern may be justified where:
  • Witnesses need protection;
  • Evidence is in danger of being destroyed;
  • Testimony is in danger of being fabricated; or,
  • There is a need to prevent a cover up.
• If the documented concern(s) justify a restraint on employees’ right to discuss this particular investigation, consider narrowly-tailored confidentiality rules which meet the relevant circumstances and protect the integrity of the investigation without unreasonably limiting employees’ protected rights under the NLRA.
• Consideration should be given to whether the need for confidentiality applies to all witnesses or only a limited group. All affected employees should be given a copy of the narrowly-tailored confidentiality policy and should be asked to sign an acknowledgement of receipt.

Tailoring any confidentiality restrictions to specific concerns that arise during a particular investigation is currently the best way to withstand Board scrutiny of those restrictions.

If you have questions about confidentiality policies, please contact Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

By: Jonathan T. Swain and Daniel Finerty

Despite the General Counsel’s issuance of three (3) separate memoranda regarding its social media cases, the National Labor Relations Board (Board) itself had not ruled on a case dealing with the issue. However, that changed on September 7, 2012 and again September 28, 2012, when the Board invalidated two social media policies as applied to employee online conduct.

On September 7, 2012, the Board released Costco Wholesale Corp., 358 NLRB No. 106 (2012), in which it reversed the finding by an Administrative Law Judge (ALJ) and found that Costco’s social media policy violated Section 8(a)(1) of the National Labor Relations Act (NLRA) by inhibiting employees from exercising their protected Section 7 rights. Specifically, the Board found objectionable the fact that the policy prohibited statements posted online which “damage the Company, defame any individual or damage any person’s reputation.”

While an ALJ earlier found that the employer’s stated purposes when issuing the policy was to foster a “civil and decent workplace” and signaled that employees would not reasonably infer that the policy restricted employee rights under Section 7 rights (to join, form or assist a union or to engage in other concerted activity for the purposes of collective bargaining or other mutual aid or protection), the Board found the rule “clearly encompasses concerted communication protesting [Costco’s] treatment of its employees> and, as a result, violated Section 8(a)(1).

On September 28, 2012, the Board found that the employer’s “Courtesy” policy violated Section 8(a)(1) of the NLRA. Karl Knauz Motors, Inc., 358 NLRB No. 164 (2012). The rule provided that “[c]ourtesy is the responsibility of every employee,” “[e]veryone is expected to be courteous, polite and” and that “[n]o one should be disrespectful or use profanity or any other language which injures the image or reputation” of the employer. The Board held that “employees would reasonably construe its broad prohibition against ‘disrespectful’ conduct and ‘language which injures the image or reputation of the [employer]’ as encompassing Section 7 activity, such as employees’ protected statements-whether to coworkers, supervisors, managers, or third parties who deal with the Respondent-that object to their working conditions and seek the support of others in improving them.”

However, the Board ultimately found that the Knauz Motor’s firing of a BMW salesperson for posting photos and comments on his Facebook page did not violate the NLRA because the activity was neither “concerted” nor “protected.” Why? Because the salesperson in question posted a series of work-related photos that disparaged the dealership and customers. The photos concerned a “picnic” promotion event involving the serving of hot dogs and chips (described as “low-brow”) and an on-site accident by a customer, after which the salesperson posted sarcastic remarks about the car and the customer.

There are several implications that follow from these decisions. Foremost is that the Board’s social media doctrine has now been “officially” adopted by the Board itself and they seem to be following their General Counsel’s lead.

Second, the Board’s doctrine continues to exhibit an aggressive approach toward social media policies. Even if the Board does not find that a work rule explicitly restricted employees in the exercise of their Section 7 rights, the Board may still determine the work rule violates the NLRA if employees would reasonably construe the language to prohibit Section 7 activity. The inquiry is not necessarily based upon the facts applicable but, rather, upon the Board’s analysis of how an employee may construe the rule. This amorphous standard signals that “unlawful” under Section 8(a)(1) may be a moving target, i.e., whatever the current Board says is unlawful. This is a difficult standard.

That said, the Board has also disingenuously rejected any attempts by employer to reasonably “carve out” an exception for an employee’s exercise of NLRA rights. In Karl Knauz Motors, the Board found that “there is nothing in the rule, or anywhere else in the employee handbook, that would reasonably suggest to employees that employee communications protected by Section 7 of the Act are excluded from the rule’s broad reach.” Would such a statement by an employer save the rule? Perhaps.

Great care must be taken in drafting and enacting these policies. In the end, the Board views itself as protecting an employee’s right to discuss the terms and conditions of their employment, even if it is done “in public” via social media. The Board is on a slippery slope and it is ignoring the fact that the water cooler areas or break rooms of the past, where such conversations routinely took place, are being replaced by the likes of Facebook, which now has in excess of one billion users!

In addition, the Board has recently found or alleged that other common employer policies are unlawful. These policies include policies that guide employer investigations, such as asking employees to maintain the confidentiality of information during an internal investigation, Banner Health System, 358 NLRB No. 93 (2012), or requiring employees to do so, Hyundai America Shipping Agency, Inc., 357 NLRB No. 80 (2011), and contractual disclaimers that define employment as “at will,” American Red Cross Arizona Blood Services Region, 28-CA-23443 (Feb. 1, 2012); NLRB v. Hyatt Hotel Corp., Case 28-CA-061114 (complaint) (May 23, 2012) (employer subsequently agreed to modify its at-will policy and post a Board notice that no oral or written statements or representations regarding employment can alter employee’s at-will employee status, except for a written statement signed by employee and either the employer’s Executive Vice-President, Chief Operating Officer or its President).

The current Board can be expected to continue to push the limits when enforcing the NLRA. Non-union employers should note that the NLRB’s enforcement efforts have been without regard to whether the workforce is unionized, or not. The NLRA applies equally in both unionized and non-union workplaces.

If you have questions, feel free to call Jonathan Swain at 414-226-4812, or Daniel Finerty at 414-226-4807, or any other Lindner & Marsack attorney at 414-273-3910.

By:  Daniel Finerty and John Murray

Conventional wisdom dictates that an election year typically leads to a rulemaking slowdown among the federal agencies that regulate the workplace.  However, in the last few months, the National Labor Relations Board has challenged that conventional wisdom by seeking to implement two new mandates on employers as well and continuing to press employers on their use of social media policies in the workplace.  The new rules, however, have effectively been halted for the time being as discussed below.  By contrast to the current pace of the Board’s rules, it continues to challenge employers’ use of social media policies in discipline and discharge cases to ensure that unions and employees can continue to use social media to communicate.  In sum, there is no sign that things are slowing down at the Board in this election year.

“Fast Track” Election Rules

For two weeks in May, the National Labor Relations Board’s “fast track” election rules were in effect.  These rules dramatically reduced the time frame between a union’s filing of a petition for an election and the election itself.  Apparently, roughly 150 election petitions were filed during the two weeks these rules were in effect.

On May 15, 2012, the federal district court for the District of Columbia issued an order which invalidated these fast track election rules.  The court held that the rules were not validly enacted because the Board only had two members vote before the rules were enacted. “[T]wo is simply not enough,” the court held.

For the time being, employers have a reprieve from these rules.  However, the Board has several avenues open to it to revive them.  First, the Board could appeal the court’s ruling.  The chances of a successful appeal appear bleak.  The Supreme Court ruled in 2010 that the Board could not function as a body without the necessary quorum of three members.  Since all three members did not vote on the fast track election rules, the chances the Board would succeed on such an appeal are grim.

On June 11, 2012, the NLRB asked the judge who invalidated the fast track election rules to reconsider his decision.  In its motion, the Board argues that the judge had a mistaken understanding of the facts.

The Board provided evidence showing that the third Board member was “present,” logged on to the voting system, acted on matters before and after the fast track rules came up and deliberately abstained from voting.  If so, the judge could find a valid quorum existed when the rules were passed, reverse course and permit the fast track election rules to (again) go into effect.

Employee Rights Notice Posting

The Board’s recent rules have not fared well in court.  It has received unfavorable decisions in three separate cases pending in two separate federal courts relating to its employee rights posting rule.  The posting required by this rule was similar to postings required by Title VII and other federal and state laws.  The rule applied to most private sector employers, even ones that did not have a union.  The district court for the District of Columbia ruled that the penalty provisions of the rule were invalid.  Soon thereafter, a federal district court in South Carolina ruled that the entire rule was invalid.  On the heels of these two decisions, the federal appeals court for the District of Columbia issued a temporary halt to the enforcement of the rule in order to allow time to consider the objections to its validity.

The Board could re-submit the “fast track” election rules and a revised version of its employee notice posting rule to its current quorum of four members.  While the Board is typically made up of five members, Member Flynn has resigned his position and recused himself from voting on any agency business.

Social Media

Regardless of whether the Board tries to implement these rules, it is continuing to press employers on social media policies.  On May 30, 2012, the Board issued its third guidance memorandum regarding its analysis of employer social media policies.  Prior memos were issued in January 2012 and August 2011 memos.

Together, all three memos discuss the Board’s legal analysis in 35 cases involving employer’s use of social media policies.  Of the seven cases discussed in the most recent memo, the Board found the employer’s policy in violation of the National Labor Relations Act in six cases.  In the seventh case, the Board found the employer’s social media policy valid only as modified.

The Board may find that an employer’s social media policy violates Section 8(a)(1) of the NLRA when it reasonably tends to interfere with employees’ rights to discuss their wages and other terms and conditions of employment.  Online employee discussions may constitute protected activity under the NLRA.  As a result, policies that explicitly restrict employee discussions of wages and other terms and conditions of work are generally prohibited.

Policies that do not explicitly restrain protected activities may still be prohibited if employees would reasonably construe the policy to do so, the rule was promulgated in response to union activity or the rule has been applied to employees engaging in protected activity.

However, the Board recently made clear that the NLRA does not protect regular employee “gripes” about the workplace.  For example, a single employee’s lone complaint posted online about a fellow employee and their work product did not constitute protected activity.

First, the fellow employee’s poor work product did not adversely impact the working conditions.  Second, the concerns expressed only had a tangential relationship to the employee’s terms and conditions of work.  As a result, the employee’s “gripes” about the fellow employee were not protected and no violation of the NLRA was found.

Conclusion

The Board continues to press its agenda on several fronts to ensure that unions and their supporters grow or, at the very least, maintain, a foothold in the American workplace.  That said, the November presidential election will likely be a key defining moment for the Board’s regulatory agenda between 2013 and 2016.

Either the Board’s regulatory activity will continue and possibly intensify.  If so, the Board may re-issue the foregoing rules and issue final rules that regulate employers’ relationships with their human resources and labor relations attorneys and partners.

Or the Board’s regulatory agency will slow dramatically and may grind to a halt.  In this case, the Board would continue to regulate employers through the traditional avenues involving its charge procedures and election certification petitions.

If you have any questions about this material, please contact Daniel Finerty, John Murray or any other attorney you have been working with here at Lindner & Marsack, S.C. at (414) 273-3910.