The Catholic University of America

TOPIC:

THE NLRB’S RECENT FOCUS ON NON-UNION EMPLOYERS AND ITS IMPACT ON COMMON EMPLOYMENT POLICIES AT COLLEGES AND UNIVERSITIES


AUTHORS:

Neil S. Goldsmith, Associate, Franczek Radelet P.C.

Scott L. Warner, Partner, Franczek Radelet P.C.

 

INTRODUCTION:

The National Labor Relations Board (“NLRB” or the “Board”) administers and enforces the National Labor Relations Act (“NLRA” or the “Act”). [1] With labor union membership steadily declining over the past 50 years, the Board’s impact and relevance has also steadily declined. [2] The enactment of employment law statutes, including Title VII of the Civil Rights Act of 1964, and the prevalence of the Equal Employment Opportunity Commission (“EEOC”) have also overshadowed the NLRB. As a result, most colleges and universities have been more concerned about EEOC charges and employment discrimination lawsuits than NLRB charges and union organizing campaigns.

However, due to the Obama Administration’s strong pro-labor stance, this is rapidly changing, making the NLRB increasingly relevant in higher education. The NLRA protects all private-sector employees, not just those who belong to labor unions. Thus, what some institutions might not fully appreciate is that the NLRA applies to nearly all private colleges and universities, regardless of whether they employ unionized workers. [3] In fact, the NLRB recently launched a web site aimed at educating non-union employees about their rights under the Act. [4] The Board has also tried to impose a requirement that all employers – unionized or not – would have to post an official notice from the NLRB that would detail the rights that employees have under the Act. [5] Additionally, last fall, two U.S. House of Representatives subcommittees convened a congressional hearing to discuss the increasingly expansive reach that the Board has recently exhibited in higher education matters. [6] A number of recent and pending decisions will have serious consequences for colleges and universities, and counsel must be prepared for them.

This Note will address a number of recent Board decisions that involve common college and university employment policies and practices, regardless of whether an institution’s employees are unionized. A future NACUANOTE will address the Board’s pending decisions in Point Park University [7] (a case in which the Board will provide more detailed guidance as to how it will apply the Supreme Court’s ruling in NLRB v. Yeshiva University [8] to cases in which an institution argues that its faculty are all managerial employees and not subject to the Act) and New York University [9] (in which the NLRB is once again wrestling with the question of whether graduate teaching assistants and research assistants are employees under the Act and thus entitled to unionize).

Before undertaking any discussion of NLRB developments, it is also critical to mention the D.C. Circuit Court of Appeals’ recent decision in Noel Canning v. NLRB, [10] which held that President Obama’s January 2012 recess appointments of three members of the NLRB were unconstitutional, and thus casts serious doubts on the precedential value of any NLRB decisions made since that time. [11] For now, however, these NLRB decisions remain good law, [12] and the NLRB has made it clear that it will continue to treat these decisions as valid until and unless the Noel Canning decision is affirmed by the U.S. Supreme Court. [13] For this reason, colleges and universities could be found in violation of the NLRA if they do not follow the Board’s guidance in this area while awaiting the outcome of further appeals in Noel Canning.

 

DISCUSSION:

During the course of the last few years, the NLRB has aggressively expanded its efforts to pursue violations of the NLRA against non-union employers in areas not involving labor disputes. A number of recent NLRB decisions have attacked employment policies that are commonplace in employee handbooks across all industries, including higher education. Seemingly innocent, well-intentioned, and generally accepted policies have been found by the NLRB to violate employees’ rights under the NLRA because they are seen as “chilling” the rights of employees to engage in protected, concerted activity under the Act. For instance, the Board has dealt with cases where non-unionized employees were unlawfully disciplined or discharged for engaging in concerted action with other employees by criticizing their employer through Facebook postings or other social media communications.

In order to understand the Board’s rationale in these cases, a brief discussion of employees’ Section 7 rights is essential. Section 7 of the NLRA states, “Employees shall have the right to self-organization, to form, join, or assist labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection….” [14] These rights apply to all individuals employed by private sector employers—both union and non-union—including nearly all employees at private colleges and universities. [15] The NLRB and the courts have consistently held that Section 7 rights are quite broad, encompassing any concerted action by employees involving activity or communications that touch upon wages, hours, and terms and conditions of employment. If an employer interferes or attempts to interfere with these employee rights—by way of threats, unlawful policies, surveillance, discipline, or other means—it will violate Section 8(a)(1) of the Act. The cases discussed below all hinge on whether an employer’s action or policy violates employees’ Section 7 rights and are applicable in the higher education setting. [16]


Social Media

The use of social media on campus and in the workplace has created a number of thorny legal issues for colleges and universities. Two broad areas of concern have arisen in the context of the NLRA: 1) whether the mere maintenance by an employer of certain policies that restrict what employees can say on social media is lawful; and 2) whether individual cases of employee discipline for their conduct on social media sites involve protected concerted activity. During the past year, the Board has issued four major decisions in these areas.

The first major decision was Costco Wholesale Corp. [17] In Costco, the Board ruled that Costco’s online communications policy violated employees’ Section 7 rights. The policy prohibited employees from posting statements “that damage the Company, defame any individual or damage any person’s reputation, or violate the policies outlined in the Costco Employee Agreement.”

The Board took issue with the breadth of the policy, finding that it “clearly encompasses concerted communications protesting [Costco’s] treatment of its employees.” The Board found that employees reading the policy would reasonably conclude that it prohibits them from engaging in protected communications – namely those that are critical of Costco or its agents. The Board also found problematic the absence of any accompanying language that would restrict its application, such as a statement that it does not apply to communications protected under Section 7 of the NLRA. For these reasons, the Board held that Costco’s policy had “a reasonable tendency to inhibit employees’ protected activity,” and, therefore, violated the Act. [18]

In Karl Knauz Motors, Inc., [19] decided just three weeks after Costco, the Board examined another social media issue where a car dealership employee was fired for posting photos and comments on Facebook criticizing two work events. Although the Board found that firing the employee did not violate the Act, [20] it held that the following courtesy policy in the company’s handbook was unlawful:

Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership.

Relying on Costco, the Board held that the policy was unlawful because employees could “reasonably construe” the language prohibiting “disrespectful” conduct and “language which injures the image or reputation of the Dealership” to include statements made to others in order to improve employees’ working conditions, which is protected activity under the Act. The Board criticized the policy for two reasons. First, the handbook did not inform employees that statements protected under the Act were not prohibited under the courtesy policy. Second, employees could reasonably assume that the company would regard statements of protest or criticism as disrespectful or injurious to its reputation. Because the policy could be broadly interpreted to prohibit protected activity, the Board determined that the policy violated the Act.

The third case in this area involved the discharge of employees for statements made in Facebook postings. In Hispanics United of Buffalo, Inc., [21] an employee of a social service agency, Lydia Cruz-Moore, repeatedly criticized the efforts of other employees, including Marianna Cole-Rivera. One day Cruz-Moore texted Cole-Rivera that she was going to go to the executive director of Hispanics United with her concerns. In response, Cole-Rivera posted on Facebook, “Lydia Cruz, a coworker feels that we don’t help our clients enough at [Hispanics United]. I about had it! My fellow coworkers how do u feel?” Four off-duty employees responded to this post and disagreed with Cruz-Moore’s alleged critique. Cruz-Moore saw and responded to these posts and presented them to the executive director. The executive director then discharged Cole-Rivera and the other employees who responded to her post on Facebook.

The Board found that the employer violated Section 8(a)(1) of the Act in terminating the employees in response to their Facebook posts. The key question was whether the employee communications were for the purpose of mutual aid or protection. The majority found that the Facebook postings were “concerted [activity] for the ‘purpose of mutual aid or protection’” and were thus protected conduct under Section 7. The activity was concerted both because the employees’ actions were “undertaken with other employees” and because the employees were taking a “first step towards taking group action to defend themselves” against the complaining employee’s accusations. The Board pointed out that the “object or goal” of initiating the group action does not have to be clearly stated for conduct to receive protection under the NLRA.

A fourth case issued in late January was Direct TV. [22] In this case, the NLRB struck down various provisions of an employee handbook and two corporate policies maintained by the employer on its intranet system. The Board said generally that the policies under review could reasonably be construed by employees as prohibiting Section 7 activity.

1.  

The first policy directly stated: “Do not contact the media.” The Board noted it was “settled” law that Section 7 encompasses employee communications about labor disputes with newspaper reporters.

2.  

The second policy statement struck down was: “Public Relations. Employees should not contact or comment to any media about the company unless pre-authorized by Public Relations.” The Board explained that any rule that requires employees to secure permission from their employer as a precondition to engaging in protected concerted activity on an employee’s free time and in non-work areas is unlawful (citing Brunswick Corp., 282 NLRB 794 (1987)).

3.  

The Board also struck down the following provision: “If law enforcement wants to interview or obtain information regarding a DIRECTV employee, whether in person or by telephone/email, the employee should contact the security department in El Segundo, CA who will handle contact with law enforcement agencies and any needed coordination with DIRECTV departments.” This provision was struck down because it could be construed to force employees to contact security before cooperating with an NLRB investigation. The Board concluded that an employee might reasonably construe Board agents as “law enforcement.”

4.  

The Board also invalidated the following confidentiality provision: “Confidentiality… never discuss details about your job, company business or work projects with anyone outside the company and never give out information about customers or DIRECTV employees.” The rule also interpreted “company information” to include “employee records.” The Board said this would reasonably be understood to restrict discussion of employee wages and working conditions. Also, the rule did not exempt protected communications with third parties such as union representatives, Board agents, or other government officials.

5.  

With regard to the employer’s intranet policy, the Board struck down the following provision: “Employees may not blog, enter chat rooms, post messages on public websites or otherwise discuss company information that is not already disclosed as a public record.” The ambiguity of the term “company information” could lead an employee to believe information about employee wages, discipline or performance records might be included. Ambiguity will be construed against the company.

 

 

In addition to these cases, the NLRB Division of Advice [23] has also issued three advice memoranda which provide examples of both legal and illegal social media policies. If the guidance from these memos can be distilled, the following principles are apparent:

1.  

General restrictions about employees being prohibited from releasing or discussing “confidential” information about the employer, in the absence of any further clarification, will likely be deemed too broad, as employees may construe such sweeping policies as prohibiting discussion of wages and working conditions.

2.  

Social Media policies will be treated no differently from other work rules or employee handbook policies. Thus, a policy may be deemed illegal if:

  1. The employees would reasonably construe the language to prohibit Section 7 activity; or
  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.