On March
22, 2016, the National Labor Relations Board (NLRB) General Counsel, Richard
Griffin, issued Memorandum GC 16-01. The memorandum instructs NLRB regions to
submit cases and issues, which are listed in the memorandum as special concern
or interest to the General Counsel, to the Board’s Division of Advice so the
General Counsel’s office can provide centralized consideration before taking
action.
The
memorandum sets forth a laundry list of subjects that the General Counsel
considers the NLRB’s priorities through 2016.
For
non-unionized employers the list includes several initiatives in which the
General Counsel is seeking to change and expand Board law.
Weingarten Rights in
Non-Unionized Settings.
Since the Supreme Court first extended the right to
representation to union employees in National Labor Relations Board v. J. Weingarten, Inc., 420 U.S. 251 (1975),
the NLRB has changed its position four times as to whether so-called "Weingarten
rights" extend to non-union employees. In the most recent decision
addressing whether "Weingarten rights" extend to non-union
employees, the Board ruled that non-union employees do not have the right to
have a co-worker present during an investigatory interview that might lead to
discipline. See, IBM Corp.,
341 NLRB 1288 (2004).
The
General Counsel has announced that the NLRB is looking for cases where
employees in non-unionized settings are denied their request to have coworker
representatives present in workplace investigatory meetings that might lead to
discipline.
Assuming
the NLRB is able to find the right case, it is likely the Board will reverse IBM
Corp. and extend representation rights to non-union employees – returning
to the Board's prior position in Epilepsy Foundation of Northeast
Ohio, 331 NLRB 676 (2000) and
Materials Research Corp., 262 NLRB
1010 (1982), where the Board first extended “Weingarten rights” to
employees in a non-union workforce.
Expand Access to
Employer's Electronic Communications Systems
The
General Counsel is looking for cases to expand the Board's decision in Purple Communications, Inc., 361 NLRB 126
(2014), to allow employees access to electronic systems beyond the employer’s
email systems for activities covered by Section 7 of the
National Labor Relations Act, which includes both the right to organize and the
right to engage in protected concerted activities (e.g. group discussions about
employee terms and conditions of employment).
In Purple
Communications, Inc., 361 NLRB 126 (2014), the National Labor
Relations Board overturned established precedent (Register Guard, 351 NLRB 1110
(2007)) that employees have no statutory right to
use employer email systems for activities covered by Section 7 of the NLRA. In Purple Communications, the Board held that
absent a showing by the employer of special circumstance that justify specific
restrictions “we will presume that employees who have rightful access to their
employer’s email system in the course of their work have a right to use the
email system to engage in Section 7-protected communications on nonworking
time.”
The
Board’s decision in Purple Communications
applies only to employer provided email systems. However, the Board did
indicate that other employer-provided electronic communication systems (i.e.
instant messaging or texting systems, or employer social media accounts), “may
ultimately be subject to a similar analysis.” The Board also left
open the question as to whether it would consider overturning precedents
limiting employee use of employer phone systems for Section 7 purposes.
Once
again, assuming the General Counsel can find the right case, the Board is
likely to expand the Purple Communication
decision to a broader group of employer provided electronic communication
systems.
Misclassification of
Employees as Independent Contractors
The National
Labor Relations Act excludes independent contractors from its coverage.
Notwithstanding, the General Counsel is looking for cases in which the Board
may argue that misclassification of employees as independent contractors would
violate Section 8(a)(1) of the National Labor Relations Act.
Consistent with the General Counsel’s stated priorities, on April 18, 2016, the NLRB Regional Director in Los Angeles issued an
unfair labor practice complaint against Intermodal Bridge Transport alleging
that the company “has misclassified its employee-drivers as independent
contractors, thereby inhibiting them from engaging in Section 7 activity and
depriving them of the protections of the Act.” The complaint further states “By
the conduct described above … Respondent has been interfering with,
restraining, and coercing employees in the exercise of the rights guaranteed in
Section 7 of the Act.”
In addition to the misclassification allegations, the
regional director's complaint asserts that Intermodal’s managers improperly
made threats of job loss if employees supported union activities, interrogated
employees about their union support, and promised more work if they refrained
from supporting a union.
Based upon the General Counsel’s stated
priorities, it appears the NLRB is taking the position that misclassification
of workers as an independent contractor in and of itself constitutes a
violation of the National Labor Relations Act.
A hearing on the complaint is scheduled for
June 13, 2016. Intermodal
Bridge Transport v. International Brotherhood of Teamsters, Case No. 21-CA-157647.
English-Only policies
The General Counsel is also
looking for cases to assert that employer English-only policies violate Section
8(a)(1) of the National Labor Relations Act.
Consistent
with the General Counsel’s stated priorities, an Administrative Law Judge in
Valley Health Systems, LLC, Case Nos. 127147 (2015) ruled, in a case of first
impression, that a healthcare providers “English- only” rule violated employees’ rights under
Section 7 of the National Labor Relations Act to engage in protected
“concerted activities,” which includes the ability to discuss and communicate
about wages, hours, and other terms and conditions of employment (in their
native language).
The
hospital’s rule required all employees to speak and communicate only in English
“when conducting business with each other,” “when patients or customers are
present or in close proximity,” and “while on duty between staff, patients,
visitors [and/or] customers . . . unless interpretation or translation is
requested or required.” The
policy, however, did permit “[e]mployees who speak languages other than English
[to] speak to each other in their language on their own time, i.e., before and
after their designated work schedule and on breaks and lunch.”
The General Counsel’s complaint
asserted that hospital’s rule was so overbroad, that it inhibited employees,
particularly non-native English speaking employees, from being able to freely
communicate (in their native language) about working conditions and/or other
terms and conditions of employment.
In
response, the employer argued that its rule was compliant with the EEOC’s
guidelines regarding “English-only” rule since its purpose was to maintain hospital
efficiency and minimize disruption in patient care by employees speaking in
languages other than English.
The Equal Employment Opportunity
Commission (EEOC) Compliance Manual, Section 13 on National Origin
Discrimination permits “English-only” rules provided that the rule is not
overly broad and is justified by a “business necessity.” According to the EEOC
guidelines, the following justify business necessity:
- In
communications with customers, co-workers, or supervisors who only speak
English;
- In
emergencies or other situations in which workers must speak a common language
to promote safety;
- For
cooperative work assignments in which the English-only rule is needed to
promote efficiency; and
- To
enable a supervisor who only speaks English to monitor the performance of an
employee whose job duties require communication with coworkers or customers.
The
Administrative Law
Judge rejected the employer’s argument, and found the rule was
not justified by business necessity.
Relying
upon Lutheran Heritage Village-Livonia,
343 NLRB 646 (2004), the Administrative Law Judge found that employees would
reasonably construe the hospital’s “English-only” rule to restrict them from
engaging in protected concerted activity. More specifically, the Administrative
Law Judge found the hospital’s rule was akin to rules that infringe upon an
employee’s right to engage in “negative speech” and “negative conversations;”
that the rule was vague as to time and location (i.e., must use English in
patient and non-patient areas, in patient access areas, and between employees,
staff, customers, patients and visitors), and that it infringed on an
employee’s ability to freely discuss and communicate about work conditions, wages
and other terms and conditions of employment (in their native language).
The
Administrative Law Judge also failed to see how patient care would be disrupted
by the
hospital restricting employees to speaking only English in non-patient care
areas and even between employees, staff, visitors, and customers, particularly
if a non-native English-speaking employee desires to converse with another
non-native English speaking employee about their respective working conditions.
On May 5, 2016, the Board affirmed
the Administrative Law Judge’s ruling regarding the hospital’s “English-only”
rule. Valley Health System, LLC d/b/a
Spring Valley Hosp. Med. Ctr.,
363 NLRB No. 178 (May 5, 2016). On May 24, 2016, the employer filed a Petition
for Review of the Board’s Order with the Ninth Circuit Court of Appeals.
Take Aways
- Employers need to remember that the NLRA applies to both union
and non-union companies.
- Employers should be aware of and monitor developments of the NLRB
General Counsel’s stated policy priorities.
- Employers should continually review their Employee handbooks to
ensure their policies are not over-broad and infringe on employee
rights protected by the National Labor Relations Act.
Should you have any questions about the National Labor
Relations Act and protected concerted activity or
Employee handbooks, contact your own legal counsel or any of our Employment& Labor Law Practice Group members.
