NLRB Rejects Employer’s Code of Conduct

NLRBThe National Labor Relations Board (NLRB) recently rejected several “anti-bullying” provisions in a hospital’s employer handbook after finding they could interfere with workers’ rights to act to improve their working conditions.

A three-member NLRB panel ruled 2-1 that the questioned questioned provisions were so over-broad and imprecise that they could be used to penalize workers who engaged in lawful conflict under the National Labor Relations Act (NLRA), such as expressing a concern about working conditions or questioning the professional capabilities of a physician or nurse.

The case involved the termination of two nurses by William Beaumont Hospital in Royal Oak, Michigan, for allegedly bullying and intimidating new nurses. The nurses, Jeri Antilla and Deanna Brandt, argued their complaints were protected by the NLRA and involved under-staffing and patient safety.

The NLRB majority ruled the following prohibitions in the hospital’s employer handbook were unlawful :

  • Conduct that “impedes harmonious interactions and relationships”
  • Verbal comments or physical gestures directed at others that exceed beyond the bounds of fair criticism.
  • Negative or disparaging comments about the professional capabilities of an employee or physician made to employees, physicians, patients, or visitors.”
  • “Behavior that is. . . counter to promoting teamwork.”

The dissent contended that the NLRB has made employers “afraid of articulating work rules (to the detriment of employees, patient safety, and a wide range of legitimate employer interests).”

The board upheld several challenged provisions in the hospital’s handbook, finding them to be lawful. These include prohibitions against “[w]illful and intentional threats, intimidation, harassment, humiliation, or coercion of employees, physicians, patients or visitors;” “[p]rofane and abusive language directed at employees, physicians, patients or visitors;” “[b]ehavior that is rude, condescending or otherwise socially unacceptable;” “[i]ntentional misrepresentation of information;” and “[b]ehavior that is disruptive to a safe and healing environment.”

Neither Antilla nor Brandt were reinstated. The NLRB upheld the lower court’s finding thatruled they  would have been fired regardless of their protected complaints for  “negative, intimidating and bullying behavior.”

The case is William Beaumont Hospital and Jeri Antilla, Case 07–CA–093885 (April 13, 2016).

NLRB Expands Transparency in Workplace Investigations

The National Labor Relations Board (NLRB) has ruled that employers can no longer automatically withhold witness statements from unionized employees who are investigated for workplace misconduct.

In Piedmont Gardens, 362 NLRB No. 139, the NLRB ruled that employers must undertake a case-by-case balancing of the union’s need for the information against “any legitimate and substantial confidentiality interests established by the employer.” In the past, employers automatically sealed witness statements, ostensibly to protect witnesses from intimidation, harassment and retaliation.  However, there was no blanket exemption for the names of witnesses. The result of the  NLRB ruling is that witness statements will be treated like the names of witnesses.

According to the NLRB:  “There is no basis for concluding that all witness statements, no matter the circumstances, warrant exemption from disclosure… if the requested information is relevant, the party asserting the confidentiality defense has the burden of proving that it has a legitimate and substantial confidentiality interest in the information, and that it outweighs the requesting party’s need for the information.”

While the board’s ruling is limited to unionized workplaces, it could have broader impact as employers adopt uniform policies to address workplace discrimination, harassment, and retaliation.  Continue reading “NLRB Expands Transparency in Workplace Investigations”

Federal Agencies Study Workplace Bullying

While federal and state laws to address workplace bullying remain elusive, the U.S. government is moving forward to address the problem.

The  U.S. Merit Systems Protection Board (MSPB) recently placed “nonsexual harassment” on its research agenda for 2015-2018.  In the past, the MSPB has focused on sexual harassment but it has not previously addressed the problem of general harassment or workplace bullying. The Board states it will study ways to foster effective work environments by eliminating nonsexual harassment.

Meanwhile, the EEOC last month formed a Select Task Force to examine the problem of workplace harassment and look at ways by which it might be prevented. EEOC Commissioner Jenny Yang said 30 percent of the charges received by the EEOC each year include harassment complaints. The task force, which includes 16 members from around the country,  will hold a series of meetings, including public meetings, in the year ahead.

The Occupational Safety Health Administration signed a union agreement in 2011 that provides protection against workplace bullying to its own workforce. Unfortunately, OSHA, which is charged with insuring the safety of America’s private sector workers, has yet to extend these same protections to workers outside OSHA.

According to the MSPB: “Nonsexual harassment is particularly inappropriate when the perpetrator is a supervisor or otherwise exercises official authority over the employee,” states the MSPB.

The MSPB states that federal employees should be aware of the problem of nonsexual harassment and “cognizant of the hazards of nonsexual harassment and strategies to extinguish this behavior before it undermines the quality of their workplace.”

Specifically, the board will study:

  • How do federal employees define nonsexual harassment?
  • How prevalent is it in the federal workplace?
  • Who are the most common perpetrators and victims of nonsexual harassment?
  • What effect does nonsexual harassment have on federal workplace outcomes like retention and turnover, motivation, engagement, job satisfaction, and leader trust?
  • Do federal employees believe that appropriate action is being taken to address nonsexual harassment?
  • What strategies, both effective and ineffective, are used to address it?

The MSPB is an independent, quasi-judicial agency in the Executive branch that hears employee appeals of decisions of the Civil Service Commission, reviews significant actions of the U.S. Office of Program Management, and performs merit system studies.

There is overwhelming evidence that workplace bullying causes targets to suffer  potentially severe mental and physical health impacts.  Employers pay the price for bullying in the form of personnel turnover, low morale and absenteeism, higher health care costs and unnecessary litigation

NLRB excuses worker’s use of F-Bomb

NLRBIf workers are continually provoked and goaded by managers, they may at some point respond emotionally.  Some may cry. Some may swear. Where is the line between an excusable outburst and misconduct that is serious enough to justify termination?

This issue was recently addressed by the National Labor Relations Board (NLRB) in a case involving a car salesperson, Nick Aguirre, who was fired after an outburst directed at his boss, Tony Plaza, the owner of Plaza Car Center of Yuma, Arizona.  In a split decision, the Board found that Plaza had violated the National Labor Relations Act (NLRA) and ordered Plaza to reinstate Aguirre with back pay.  Section 8 of the act protects employees who are acting to improve their working conditions. Continue reading “NLRB excuses worker’s use of F-Bomb”

NLRB, Scholarships and Bootleg Plays

A bootleg play occurs when a quarterback pretends to pass off the ball in an effort to misdirect the defense, and then runs with it.

For years, universities have been engaged in a bootleg play with respect to elite football and basketball players and teaching assistants. They compensate these employees with free tuition and other “grants in aid,” despite the fact they really work for the university and, especially in the case of athletes, generate millions of dollars in revenue.

Now the National Labor Relations Board (NLRB) has issued a decision classifying football players at Northwestern University as employees who are entitled to unionize (or not).

The university pays a wage to undergraduate students who work in the campus library or dining hall.  Why shouldn’t  it pay a football player who is required to work 40 to 60 hours a week in sometimes difficult conditions, while risking brain injury and chronic debilitation?

NLRB Judge Peter Sung Orh ruled the Northwestern football players are employees because, among other things, they are required to work under “strict and exacting control” by the university throughout the entire year, so much so that it interferes with their educational pursuits.

Critics argue the athletes are compensated already through scholarships (which could be construed as an admission that they are employees).  Nonetheless, an athletic scholarship is not like a scholarship to study poetry or physics. It is money paid for work performed for the university.

The Northwestern football players who get scholarships (only 85 out of 112 do) receive free tuition, room and board and other perks totaling an estimated $61,000 a year. But this  rate of compensation pales when compared to coaches, athletic administrators and the profits they generate for the university.

The real issue that strikes fear in the heart of American universities is the possibility that college athletes might demand a  share of the pie. According to the Washington Post, the television contract for the new college football playoff system is worth $7.3 billion over 10 years, and the current deal to broadcast the men’s basketball tournament is worth $10.8 billion over 14 years.

Importance of Language

Football players aren’t the only university employees who are being short-changed through a bootleg play.

Universities like call teaching assistants “graduate students” so that they can be largely unpaid. However, in the past two decades, teaching assistants (a.k.a. Academic Student Employees) have unionized at approximately two dozen public American universities.  The Internal Revenue Service considers teaching assistants to be employees and taxes their compensation as wages.

Private universities like Northwestern have fought successfully to avoid unionization of student employees but that may be changing.

The NLRB ruled in 2004 that teaching assistants at Brown University were primarily students and denied them a petition to unionize.  However,  students at New York University, which is a private institution, voted last December by a margin of 620 to 10 to affiliate with the United Automobile Workers, a national union that represents  workers in higher education across the country.


Judge  Ohr said the Brown precedent did not apply to football players in part because their role as athletes are separate from their academic role.  He has directed an election to take place on the question of whether the members of the Northwestern College Athletes Players Association wish to unionize. The university is expected to appeal Ohr’s decision.

National Chamber Lobbies Federal Cts

When people think  of lobbyists, they usually think of groups that work behind the scenes to  influence legislators in the U.S. Congress.

The U.S. Chamber of Commerce, however,  has had tremendous success “lobbying” federal courts  through  “friend of the court” briefs filed in  lawsuits  on behalf of its conservative  corporate clients. For example, the Chamber routinely opposes any perceived expansion of  worker rights and it usually prevails.

The Chamber, and its President Thomas Donahue, who earns a salary of $4.95 million a year, spend far more money to influence decision-makers than any other lobbying group.

The Center for Responsive Politics at  Open  estimated last year that the Chamber spent $1 billion from 1998 to 2013, which is three times the amount spent by the nearest runner up,  General Electric, which spent about  $294 million over the same period.   No union, labor, consumer or environmental group was listed in the top 20 U.S.  lobbying groups.

National Labor Relations Board

At present, the Chamber  is a critical player in a lawsuit opposing President Barack Obama’s 2012 recess appointments to the National Labor Relations Board (NLRB) and the Consumer Finance Protection Bureau (CFPB).   Obama was forced to resort to recess appointments during Congress’s Christmas vacation in 2012 after encountering a wall of Republican resistance to his proposed appointments.

To challenge the recess appointments, the Chamber joined in a  lawsuit filed by Noel Canning  Corp., a small bottling company in Yakima, Washington. Noel Canning was the subject of  an adverse decision issued by the  NLRB in an unfair labor practices dispute. The Chamber argued that  the NLRB lacked the authority to issue the ruling because it was not comprised of constitutionally appointed board members.

The Court of Appeals for the D.C. Circuit ruled in the Chamber’s favor last year, holding that  Obama’s  appointments violated the Recess Appointments Clause of the U.S. Constitution.  The appeals court said recess  appointments may be made only during the recess that occurs  between each session of Congress and not during  breaks that occur  while Congress is still in session. The Court also said recess appointments can  only be made to fill  positions that become vacant during the recess.

The NLRB filed an appeal with the U.S. Supreme Court, which has a strong pro-business majority. The Court  heard the case in January and could, in its ruling, throw the NLRB into chaos and upset more than a thousand NLRB decisions issued during the past two years.

The Chamber also wants to “save” the CFPB by replacing its director with a bipartisan five-member commission and bring the CFPB under Congressional control. This  would castrate the new agency, which was created after massive fraud on Wall Street led to a world-wide economic meltdown from which the world (including the U.S.) has yet to recover.

Other Cases

On another front, the Chamber is opposing a proposed rule by the Occupational Safety and Health Administration to publicize companies’ health and safety records.

Last year, the Chamber  successfully opposed the so-called “poster rule” proposed by the NLRB to require employers to pose notices in the workplace informing workers of their right to work together to improve their working conditions.

The Chamber  does not limit itself to “lobbying”  the courts and the legislature. A Google search shows the Chamber in February inserted itself into a special election in Florida. According to Politico, the Chamber  funded a TV commercial attacking Democratic Congressional candidate Alex Sink for supporting the Affordable Care Act which, the commercial states, will mean that  300,000 Floridians will “lose their current coverage because of Obamacare.”

The  Chamber describes itself  as “the world’s largest business federation representing the interests of more than 3 million businesses of all sizes, sectors, and regions, as well as state and local chambers and industry associations.”

OSHA Rule Would Reveal Rogue Employers

librarycongress.twolaborersThe truth of the adage that knowledge is power is evident in backlash against the Occupational Safety and Health Administration’s proposed rule to publicize companies’ health and safety records.

OSHA wants to eventually create a public web site containing workplace health and safety information. Businesses already have to report this information to OSHA and this information already supposedly  is public. In reality, however, the information is not accessible.

At present, an employee has to submit a formal information request to a government bureaucrat or  an often reluctant and suspicious employer. Moreover, this needlessly arduous and time consuming process makes it is virtually impossible to compare workplaces and industries.  (e.g., Is this mining company a callous rogue or simply a representative of a dangerous industry?)

Released in November 2013, the proposed rule requires electronic submission of workplace illness and injury data information. The agency will provide a secure website for data collection and insures that any data publicized will not include employee-identifying information. In a press release,  OSHA argues that timely, establishment-specific injury and illness data “will help OSHA target its compliance assistance and enforcement resources more effectively by identifying workplaces where workers are at greater risk, and enable employers to compare their injury rates with others in the same industry.”

As usual, the opposition is led by the U.S. Chamber of Commerce,  fresh from its victory in defeating a proposed rule by the National Labor Relations Board  to require employers to post notices informing workers of their right to work together to improve their working conditions under the National Labor Relations Act (NLRA).

At a public meeting called by OSHA earlier this month, Baruch Fellner, a partner of Gibson, Dunn & Crutcher LLP, which represents the national chamber, argued that OSHA is not authorized by statute to create a new, publicly searchable database of workplace injury and illness records.”This is completely beyond OSHA’s mandate,” decried  Fellner. (This was the chamber’s winning argument  to defeat the NLRA posting rule.)

Opponents contend that making employers’ injury and illness data publicly available could unjustly harm an employer’s reputation because the data would not be put into context or include information about the employer workplace safety programs and improvements. They also expressed concern for the potential misuse of this data by business competitors or (gasp!) trial attorneys.

It is certainly understandable that businesses with inordinately high numbers of workplace casualties would want to keep this information under wraps. However, that same argument could be made by convicted felons and sex offenders. Which begs the question – why is the U.S. Chamber of Commerce choosing to align itself with rogue businesses that create or tolerate  conditions that result in needless workplace injuries and deaths.

Dr. David Michaels, Assistant Secretary of Labor for Occupational Safety and Health, says the  reporting rule would permit employers, employees, the government and researchers to have better access to data that will encourage earlier abatement of hazards and result in improved programs to reduce workplace hazards and prevent injuries, illnesses and fatalities. He notes that the proposal does not add any new requirement to keep records; it only modifies an employer’s obligation to transmit these records to OSHA.

It seems obvious that true public disclosure of health and safety data could change the equation for employers that now consider employee injuries and deaths to be cheaper than spending money on best practices and workplace safety.

If this is not OSHA’s mandate, what is?

The public has until Feb. 6, 2014, to submit written comments on OSHA’s proposed rule.

Under the proposed rule, initially establishments with more than 250 employees are required to electronically submit the records on a quarterly basis to OSHA. Establishments with 20 or more employees, in certain industries with high injury and illness rates, are required to submit electronically only their summary of work-related injuries and illnesses to OSHA once a year.

Social Media Puts Wal-Mart on the Defensive

Social media appears to be playing a significant role in an epic battle between Wal-Mart Stores, the world’s largest retailer,  and an American union that presumably would like to represent Wal-Mart workers, The United Food and Commercial Workers .

The union has channeled worker dissatisfaction with  Wal-Mart’s  wages, benefits and working conditions into an innovative social media campaign  featuring web sites funded by the union called OURWalmart (Organization United for Respect at Walmart) and Making Change at Walmart.    These sites include a fundraising arm for “striking” Wal-Mart associates, news about alleged poor labor practices by Wal-Mart, and slick videos of associates complaining about their treatment by Wal-Mart. On Tuesday, OURWalmart referred associates to information allegedly leaked by on secret Wal-Mart power points   that tell managers how to fend off unionization efforts.

OURWalmart has garnered national publicity for labor protests at Wal-Mart stores across the nation and appears to be making some gains, possibly because of Wal-Mart’s seeming overreaction to the protests of associates and the reality of Wal-Mart’s stingy  pay and benefits.

The National Labor Relations Board (NLRB) Office of the General Counsel recently issued a consolidated complaint  against Wal-Mart alleging that the company violated the rights of its employees as a result of activities surrounding employee protests in 14 states. The complaint involves more than 60 employees, 19 of whom were discharged allegedly as a result of their participation in activities protected by the National Labor Relations Act (NLRA).  The NLRA guarantees the right of private sector employees to act together to try to improve their wages and working conditions with or without a union.

Wal-Mart contends that most of the associates were fired “for violating Walmart’s attendance policies that apply to all associates. Some of these individuals violated the attendance policy dozens of times in the last six months. In other cases, they were absent from work for more than eight days without letting anyone know when they would be returning to work. The facts present a very different story from what OUR Walmart/UFCW asserts.”

Wal-Mart has responded to the UCFW campaign with its own web site called, , which states its purpose is “to examine claims and provide facts about the Organization United for Respect at Walmart (OUR Walmart) – a group funded by the United Food and Commercial Workers International Union. This site is sponsored and operated by Wal-Mart Stores, Inc.”

Fact checker

Ironically, Walmart’s  on Tuesday appeared to need a fact checker.

The web site incorrectly quotes a story in The Daily News Telegram of Worchester, Massachusetts, as reporting  that the average the average Walmart associate earns $12.83 per hour, and less than 1/2 of 1% of associates earnclaim_source minimum wage.  Walmart provides a link to the The Telegram story, which quotes Kory Lundberg, a Walmart spokesman, as stating:  “In Massachusetts … the average wage of a full-time hourly associate at Walmart is $13.86. He also noted that the majority of Walmart employees are full time. Mr. Lundberg said less than 1/2 of one percent of all Walmart associates earn minimum. Walmart’s pay is comparable to other retailers; it has to be to stay competitive, he said.”

There’s obviously a difference between the average pay of a Walmart associate and the average wage in Massachusetts of a full-time hourly Walmart associate.

NLRB Complaint

According to the NLRB,  the consolidated complaint against Wal-Mart actually was authorized in November of 2013, but withheld until last week while the Office of the General Counsel engaged in failed settlement discussions with Wal-Mart.  Additional charges are under investigation.

The NLRB states that Wal-Mart unlawfully threatened employees with reprisal if they engaged in strikes and protests during two national television news broadcasts and in statements to employees at Walmart stores in California and Texas. At stores in California, Colorado, Florida, Illinois, Kentucky, Louisiana, Maryland, Massachusetts, Minnesota, North Carolina, Ohio, Texas and Washington, the NLRB says that Wal-Mart unlawfully threatened, disciplined, and/or terminated employees for having engaged in legally protected strikes and protests.  At stores in California, Florida, Missouri and Texas, the NLRB says Wal-Mart unlawfully threatened, surveilled, disciplined, and/or terminated employees in anticipation of or in response to employees’ other protected concerted activities.

Note: OurWalmart includes a “legal disclaimer” stating that the UCFW is not trying to organize Wal-Mart workers but merely to “help Wal-Mart employees as individuals or groups” in their dealings with Wal-Mart.

NLRB Abandons Poster Rule

Given the hostile climate toward employee rights in federal courts, it is not surprising that the National Labor Relations Board (NLRB) has abandoned its efforts to require employers to post a notification informing workers of their rights to join together to improve their working conditions.

The NLRB announced this week that it will not file an appeal in the pro-business  U.S. Supreme Court to overturn two federal court decisions rejecting  the so-called poster rule.

The NLRB wanted private-sector employers to hang a poster in a conspicuous place (i.e. lunch room) informing workers of their rights under the 75-year-old National Labor Relations Act (NLRA).

Many American workers today, especially recent immigrants, are ignorant of their rights under the NLRA. The poster rule is also important for non-union workers who lack a designated bargaining representative. The NLRA can come into play in non-union workplaces when, for example, an employer fires a non-union worker for discussing a safety concern with a co-worker.

It is ironic that most private-sector employers already are required by federal law to post documents in the workplace informing workers of  their rights under Fair Labor Standards Act, the Family and Medical Leave Act, equal employment opportunity laws, etc.

The poster rule elicited immediate opposition from a broad coalition of national business groups after it was approved by the NLRB in 2011.

Twenty-one Republican members of the U.S. House of Representatives joined with the U.S. Chamber of Commerce  to oppose the poster rule, including John Kline (R-Minn.) chairman of the House Committee on Education and the Workforce.

The U.S. Court of Appeals for the Fourth Circuit in South Carolina  ruled  last summer that the NLRB lacks the authority to require employers to post notices either electronically or physically in a conspicuous place. The court said “ we find no indication in the plain language of the Act that Congress intended to grant the Board the authority to promulgate such a requirement.”

The U.S. Court of Appeals for the D.C. Circuit earlier ruled that the poster rule violate employers’ free speech rights.

Here are the rights that the U.S. Chamber of Commerce has worked so diligently to insure that American workers do not know they possess under the NLRA:

  •  Workers can organize a union to negotiate with employers concerning wages, hours, and other terms and conditions of employment.
  • Workers can form, join or assist a union.
  • Workers can bargain collectively through representatives of employees’ own choosing for a contract setting wages, benefits, hours, and other working conditions.
  • Workers can discuss terms and conditions of employment or union organizing with co-workers or a union.
  • Workers can engage in protected concerted activities with one or more co-workers to improve wages, benefits and other working conditions.
  •  Workers can choose not to do any of these activities, including joining or remaining a member of a union.


Surveillance in the Workplace

OK for Employer, not Employee?

Whole Foods Market, Inc., the world’s largest retailer of natural and organic foods, has prevailed in a union  battle to overturn a store policy that prohibits employees from recording conversations.

Steven Davis, an administrative law judge for the National Labor Relations Board (NLRB), recently issued a decision dismissing a complaint filed against the store by  the United Food and Commercial Workers, Local 919, and Workers Organizing Committee of Chicago.

The union argued that the policy prevents workers from recording conversations related to protected activities, including allegedly unlawful statements made by supervisors.  Also, the union noted that recordings are valuable evidence in administrative or judicial forums in employment related matters.

“I agree,” wrote Judge Davis in his opinion, “ but the employee may present his contemporaneous, verbatim, written record of his conversation with the other party, and his own testimony concerning employment-related matters. Only electronic recordings of conversations is prohibited.”

Ironically, the policy in question also states that “many Whole Foods Market locations may have security or surveillance cameras operating in areas where company meetings or conversations are taking place, their purposes are to protect our customers and Team Members and to discourage theft and robbery.”

Judge Davis said the presence of company surveillance cameras does not make the policy unlawful because employees are advised of the presence of the cameras and the cameras address a legitimate business concern – to protect customers and employees and discourage theft.

The complaint alleged the policy violates Section 8(a)(1) of the National Labor Relations Act, which makes it illegal for an employer “to interfere with, restrain, or coerce employees” in the exercise of their rights to organize collectively.

Whole Foods maintained the purpose of the policy is “to eliminate a chilling effect to the expression of views that may exist when one person is concerned that his or her conversation with another is being secretly recorded. This concern can inhibit spontaneous and honest dialogue especially when sensitive or confidential matters are being discussed.”  A violation of the policy, which applies to tape recorders, cell phones and any electronic device, results in “corrective action, up to and including discharge.”

Marc Ehrnstein, the global vice president for Whole Food’s team member services,  said the policy applies to employees during working time – not their break time – and extends to all areas of the store including the parking lot and the area in front of the store. He said an employee’s recording of picketing in front of the store would be a violation of the rule.

Ehrnstein testified at a hearing last summer that Whole Food’s “core values” and “culture” encourage employees  to “speak up and speak out” on many issues. For example, he said each store has a “town hall” meeting once a year where employees meet with regional management leadership without store management being present.  Ehrnstein said  workers would be reluctant to voice their opinions about store management if they knew that their comments were being recorded.

Whole Foods, which operates 351 stores and employs 76,000 workers, adopted the policy in 2001.