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News & Analysis

The Good, the Bad and the Ugly

By David Phippen
Metro Washington D.C. Office


NLRB expected to overrule or modify precedent on use of employer email systems and standard for joint employment - As we have reported multiple times, the current majority at the National Labor Relations Board is actively looking for opportunities to give an advantage to labor in nearly all circumstances, including organizing and administrative litigation. The Board has sought amicus briefs in two cases where it is expected to overrule or modify its own precedent.

Purple Communications: Use of employer email system for organizing

Since the Bush-era Board's 2007 decision in Register-Guard, employees have no statutory right to use employer email systems for union organizing or concerted activity. That same issue is before the Obama-era Board now in Purple Communications, Inc., and the Board has invited interested parties to submit briefs, indicating that Register-Guard may be overruled.

In Purple Communications, a union filed unfair labor practice charges after losing a representation election, contending among other things that an employer's rule prohibiting use of its email system for personal matters was unlawful and grounds for overturning the results of the election. An administrative law judge set aside the election on other grounds but, based on Register-Guard, found that the employees had no right to use the employer's email system. (Apparently there was no evidence that the employer had discriminated against union activity by allowing other personal solicitations.) The Board's General Counsel sought review by the Board, arguing that Register-Guard should not control and should be overruled given changes that have allegedly taken place since the time of that decision. The General Counsel contends that employees increasingly, since Register-Guard was decided in 2007, use email as a primary means of communication in the workplace and that employee discourse is crucial to the exercise of Section 7 rights. Many employer and several labor interest groups weighed in with their own briefs by the deadline of June 16, 2014. After the parties respond to the amicus briefs and the NLRB issues a decision, the case may end up in a federal Court of Appeals.

Browning-Ferris: Joint employer standard

The approximately 30-year-old standard for finding a "joint employer" relationship, generally stated, is that entities are joint employers only if they have the ability to control or co-determine the employees' essential terms and conditions of employment. However, on May 12, the NLRB invited interested parties to submit briefs addressing various questions, including the following: "If the Board adopts a new standard for determining joint employer status, what should that standard be?"

In Browning-Ferris Industries (and Leadpoint Business Services), Browning-Ferris had contracted out to Leadpoint certain sorting and cleaning jobs at a recycling facility. A union seeking to organize the workers filed a petition with the Board asserting that both companies were the employers. The NLRB's Regional Director, applying the Board's current "joint employer" standard, determined that only Leadpoint was the employer and ordered an election. The union sought review, asserting that meaningful bargaining was impossible without the participation of Browning-Ferris, which supplied all the capital for the recycling operations and thus effectively controlled the Leadpoint employees' employment. The union contends that the current standard allows "the calculated restructuring of employment" by an entity such as Browning-Ferris and "insertion of a contractor to insulate itself from the basic legal obligation to recognize and bargain with the employees' representative." Employer groups can be expected to argue that entities should not have to recognize unions or bargain about terms and conditions of employment that they do not directly control.

The NLRB's decision may have a significant impact on entities with operations that are contracted out, that use leased or temporary agency employees, or that operate through franchise business models. Some entities may choose to restructure their operations.

OSHA agrees to refer untimely safety retaliation claims to the NLRB - Joe Murray from Constangy's Atlanta office reported on this recently.

NLRB just keeps strikin' down those workplace rules - As we have previously reported, the Board is aggressively pursuing unfair labor practice cases involving what used to be considered standard, accepted workplace rules and policies. The Board's position is that the policies may have a "chilling effect" on employees' exercise of their Section 7 rights. But it is nearly impossible to draft a policy that would never conceivably have any possible chilling effect on any form of Section 7 activity, given the nearly unlimited forms such activity can take. More employers, union and non-union alike, are finding this out as the NLRB and its ALJs strike down more rules on an almost weekly basis:

Hooters of Ontario Mills – rules against "Insubordination to a manager or lack of respect and cooperation with fellow employees or guests" and "disrespect to guests."

Hills and Dales General Hospital – rules against "negative comments about our fellow team members" and "engaging in or listening to negativity or gossip," and requiring that employees "represent the hospital ... in a positive and professional manner in every opportunity."

The Kroger Company of Michigan – social media policy that (1) barred the use of any Kroger intellectual property assets, including trademarks and the Kroger insignia, banner or logo on any posting without the company's permission and (2) required employees who identified themselves as Kroger employees or posted any company-related information to include specific disclaimer language indicating that the postings were the employees' own and not necessarily the positions, strategies, or opinions of the company.

What's next? How about threats and obscenity? In Plaza Auto Center, Inc., a panel of the Board by a 2-1 vote found that concerted activity by an employee making complaints to management was protected even though the employee undisputedly was discharged for calling the employer-owner a slew of "obscene and personally denigrating terms accompanied by menacing conduct and language."

It seems that nearly all workplace rules meant to reinforce workplace civility are off the table with the Board as currently constituted. As we have suggested previously, employers should be reviewing their workplace policies and rules and considering revision in light of the Board's current position.


Pot-loving Portlandians don't seem very pro-labor - Paid canvassers for the Oregon Campaign for the Restoration and Regulation of Hemp recently walked off their jobs and launched a strike against the non-profit, complaining about bounced paychecks and seeking written agreements to be paid $15 an hour. ("Hey – it's now the minimum wage in Seattle!") The striking pot-canvassers, who joined with the Industrial Workers of the World, launched a phone campaign against their employer and held demonstrations on the street in front of its office, along with Jobs With Justice and other labor groups in the Portland area. An official of the non-profit reportedly "screamed and swore" at the strikers, asserting the non-profit was a "real grassroots campaign." Apparently the grass roots were easily replanted: the non-profit promptly replaced the striking canvassers. The strike against this "joint" employer is probably not a "high" point for labor supporters in left-leaning Portlandia.

Liking Duck Dynasty makes you anti-gay, Union says (but Air Force doesn't agree) - Speaking of TV shows, a representative of the American Federation of Government Employees asked that two civilian management officials be removed from their jobs at Elgin Air Force Base near Fort Walton Beach, Florida. Their offense? They displayed decals from the A&E reality show Duck Dynasty on their vehicles, and one had displayed such a decal in his work area. The union reportedly "took offense" at the decals and said they might violate the Civil Rights Act of 1964. According to the union official, "it's definitely 100 percent inappropriate for an organization that espouses a zero tolerance policy to condone such activity." He said that managers who supported Duck Dynasty could have an impact on employment opportunities for individuals in groups "disparaged by the likes of Phil Robertson."

Presumably, the official is referring to LGBT employees. The popular show drew controversy in 2013 when star-patriarch Phil Robertson said that he believed homosexuality was contrary to the teachings of the Bible. A&E actually suspended Mr. Robertson from the show, but his family refused to fulfill their contracts without him, and after an outpouring of support from the show's fans, the network allowed Mr. Robertson to return.

Like the Robertsons, the managers at Elgin did not go away easily. They cited their First Amendment rights, and the Air Force apparently agreed because it rejected the Union's claim after an investigation.

They never get sick, and they never complain about their pay - According to news reports, unions targeting the fast-food industry have spent millions in the effort (for example, $2 million by the Service Employees International Union in the Chicago area alone). But a report in CNN Money entitled "Robots will replace fast-food workers" indicates that the fast-food industry is responding by experimenting with technology to reduce the number of human restaurant workers needed.

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Constangy, Brooks & Smith, LLP has counseled employers on labor and employment law matters, exclusively, since 1946. A "Go To" Law Firm in Corporate Counsel and Fortune Magazine, it represents Fortune 500 corporations and small companies across the country. Its attorneys are consistently rated as top lawyers in their practice areas by sources such as Chambers USA, Martindale-Hubbell, and Top One Hundred Labor Attorneys in the United States, and the firm is top-ranked by the U.S. News & World Report/Best Lawyers Best Law Firms survey. More than 140 lawyers partner with clients to provide cost-effective legal services and sound preventive advice to enhance the employer-employee relationship. Offices are located in Alabama, California, Florida, Georgia, Illinois, Massachusetts, Missouri, New Jersey, North Carolina, South Carolina, Tennessee, Texas, Virginia and Wisconsin. For more information, visit


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