In Tesla, Inc., the NLRB reversed a Trump-era decision re union insignia, returning to prior caselaw holding that employers must allow employees to wear union insignia despite dress codes and uniform policies, unless “special circumstances” require otherwise. Whether special circumstances exists will depend on whether, in each case’s circumstances, the union insignia “may jeopardize employee safety, damage machinery or products, exacerbate employee dissension, unreasonably interfere with a public image that the employee has established, or when necessary to maintain decorum and discipline among employees.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2023-02-14 17:41:242023-02-09 17:42:42NLRB permits wearing of union insignia absent special circumstances
The NLRB has ruled that employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations. A typical “gag order” would be an instruction by the company to employees (and other witnesses) not to discuss matters relevant to an on-going investigation.
The decision triggered a heated dissent from one Board member who argued it will allow employers, in #MeToo type matters, to further keep secret wrongful matters, such as the details of sexual harassment.
In issuing its decision the Board held that such “gag orders” will, still, draw individualized case-by-case scrutiny from the Board when they are “not
limited on their face to open investigations.”
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2019-12-18 16:59:202019-12-18 16:59:20In another reversal, NLRB holds employers can issue so-called “gag orders” to protect the confidentiality of workplace investigations
Employers should steer clear of “zero tolerance” policies according to the EEOC. A “zero tolerance” policy provides that any form of proscribed behavior (typically sexual harassment or discrimination) will result in immediate discharge.
Zero tolerance policies can “chill reporting,” cautions EEOC Commissioner Chai Feldblum (a Democrat appointee). According to Commissioner Feldblum, individuals may choose not to report harassment when they know it might result in the accused’s discharge: “A lot of people don’t want their co-worker to be fired, they just want the conduct to stop.”
It’s not just one EEOC Commissioner who doesn’t like zero-tolerance policies. It’s also the position taken by the EEOC’s 2015 task force on harassment. Its July 2016 report called “zero tolerance” policies “misleading and potentially counterproductive.” Like Commissioner Feldblum, the task force cautioned that such policies “may contribute to employee under-reporting of harassment.”
Instead, the EEOC recommends a policy that reserves to employers the ability to determine the appropriate level of discipline, up to and including, but not necessarily, immediate discharge.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-07-11 14:56:002018-07-11 14:56:46“Zero Tolerance” policies go too far according to … the EEOC?
During President Obama’s administration, the NLRB substantially expanded its scrutiny of handbooks, workplace rules and workplace policies that, it felt, conflicted with Section 7 of the National Labor Relations Act. Section 7 is the part of the Act that permits both unionized and non-unionized workers to act together in concert to further their wages, hours and working conditions.
Now the Board is directed to no longer err on the side of finding a violation when it determines language is merely on its face, without evidence of actual anti-union animus, potentially ambiguous.
Regions should now note that ambiguities in rules are no longer interpreted against the drafter, and generalized provisions should not be interpreted as banning all activity that could conceivably be included.
NLRB General Counsel advised Board personnel that, now, the following types of policies should be considered presumptively lawful:
Civility codes (for example, policies that prohibit language or behavior that is offensive, rude, discourteous, negative, annoying, disparaging, condescending, etc.)
Rules that prohibit photography/recording in the workplace
Rules that prohibit insubordination or non-cooperation
Rules that prohibit disruptive or boisterous conduct
Rules that protect confidential, proprietary or customer information
Rules that prohibit defamation or misrepresentation
Rules that protect company logos and I.P.
Rules that prohibit speaking on behalf of the company without authorization
Rules that prohibit disloyalty, nepotism or self-enrichment
NLRB General Counsel advised Board personnel that, now, the following types of policies will no longer be considered presumptively unlawful, but rather will now require individualized analysis of the particular circumstances of each case:
Rules that prohibit conflicts of interest “that do not specifically target fraud and self-enrichment”
Broad confidentiality rules that merely protect “employer business” or “employer information”
Anti-disparagement rules that prohibit criticizing the company only
Rules that broadly prohibit the use of a company’s name
Rules that restrict workers’ ability to speak to media or third-parties on their own behalf
Rules that prohibit lawful off-duty conduct that is otherwise protected
Rules that broadly prohibit making any kind of “false or inaccurate statements”
Finally, NLRB General Counsel identified the following as rules that remain presumptively unlawful:
Rules that prohibit employees from discussing their wages, hours and working conditions
Rules that prohibit employees from disclosing their own wages, hours and working conditions to the media
Rules that prohibit employees from joining “outside organizations”
NLRB General Counsel also cautioned that the Board’s historical (pre-Obama era) approach to the following types of policies remains unchanged:
Workplace access policies
Uniform policies (to include rules re buttons, tshirts, etc.)
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-06-06 15:42:432018-06-06 16:02:52Board steers a sharp 180 in the application of Section 7 to handbooks and policies
As previously reported here in this blog, the Trump Board (NLRB Boards are often colloquially but not pejoratively referred to by the President during their term) has begun overruling Obama-era precedents. Further reversals are anticipated. Curious which Obama-era NLRB precedents are likely to be reversed?
NLRB General Counsel Robb issued a controversial memo, shortlisting the cases he thinks most warrant attention. Indeed to call it a shortlist is a stretch. The General Counsel lists 26 categories, that range from employee access to email, to protections for section 7 rights, obscene and harassing behavior, off-duty access to property, the Weingartenright to have a representative present, rights of employees during contract negotiations, successorship and of course the joint employer doctrine, unilateral changes consistent with past practice, information requests during the processing of a grievance, dues check-offs, remedies, deferral, and, well, the list goes on, as will employers’ need to stay tuned to forthcoming developments at the Board.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2018-01-09 12:00:512017-12-12 12:04:34NLRB General Counsel issues memo outlining likely reversals to Obama-era precedents
In a controversial case, the Second Circuit affirmed the NLRB’s decision that profanity – profanity any reasonable employer would arguably not permit in its workplace – must be permitted in the workplace. This stunning decision was rendered under Section 7 of the National Labor Relations Act, which is a section of that law that applies to non-union as well as unionized employers. Section 7 permits employees to engage in speech to further their wages, hours and working conditions.
In this case, the speech was designed to solicit support for a union in its organizing campaign. An employee felt his supervisor spoke to him harshly, so, on a break at work, he used his phone to post on Facebook text that included saying that supervisor “is such a NASTY MOTHER F*CKER don’t know how to talk to people!!!!!! F*ck his mother and his entire f*cking family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!” (Asterisks added.) What most employers and management-side counsel would find so striking about this language is its combination of purely gratuitous profanity – the graphic cursing adds nothing to the message’s content – but its attack on the supervisor’s mother and “entire” family. Still, when the employee was discharged, and a charge filed at the NLRB, the Board and now the Second Circuit held against the company,
How could both the Second Circuit and the NLRB find this language not only acceptable but legally protected? One unusual fact in the case is perhaps significant and may limit this decision to this particular workplace: The court said that there was “widespread profanity in the workplace, including the words ‘f*ck’ and ‘mother*cker,’ among other expletives and racial slurs.” (Asterisks added.)
Because the profanity occurred in social media, the Second Circuit reiterated the NLRB’s multi-factor test for social media postings:
The “totality of the circumstances” test for evaluating an employee’s use of social media may consider the following factors: (1) any evidence of antiunion hostility; (2) whether the conduct was provoked; (3) whether the conduct was impulsive or deliberate; (4) the location of the conduct; (5) the subject matter of the conduct; (6) the nature of the content; (7) whether the employer considered similar content to be offensive; (8) whether the employer maintained a specific rule prohibiting the content at issue; and (9) whether the discipline imposed was typical for similar violations or proportionate to the offense. Pier Sixty, LLC, 2015 WL 1457688, at *3.
The Second Circuit’s conclusion suggests this case is limited to its unique facts, making it the “outer-bounds” (as the Second Circuit, itself, called the decision) of this seemingly already stretched reading of Section 7. The court described its own decisions, as follows:
In sum, Pier Sixty has failed to meet its burden of showing that Perez’s behavior was so egregious as to lose the protection of the NLRA under the Board’s “totality‐of‐the‐circumstances” test. However, we note that this case seems to us to sit at the outer‐bounds of protected, union‐related comments, and any test for evaluating “opprobrious conduct” must be sufficiently sensitive to employers’ legitimate disciplinary interests, as we have previously cautioned.50 We have considered all of Pier Sixty’s objections to enforcement and have found them to be without merit.
https://l2slegal.com/wp-content/uploads/2017/05/logo-orig.png00Bill C. Bergerhttps://l2slegal.com/wp-content/uploads/2017/05/logo-orig.pngBill C. Berger2017-06-05 10:54:522017-06-05 10:54:04Second Circuit OK’s profanity in the workplace