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Spring/Summer 2017 Update on Key NLRB Decisions: Christine K. D. Belcaid

Macy’s, Inc., 365 NLRB No. 116 (August 14, 2017)

An employer’s rule restricting employees from disclosing customer information from the employer’s confidential records did not violate the National Labor Relations Act (“the Act” or “the NLRA”).  Because the rules were limited to information contained in the confidential files of the employer, they were lawful.  The Board stated that while employees generally have a Section 7 right to appeal to their employer’s customers for support in a labor dispute, the disputed rules did not restrict such appeals.

RHCG Safety Corp., 365 NLRB No. 88 (June 7, 2017)

The employer violated Section 8(a)(1) of the Act by interrogating an employee about his union activity.  In addition, the Board ordered that the election be set aside and directed a new election because (1) approximately 90% percent of the addresses on the voter list were inaccurate; (2) the list omitted the names of at least 15 eligible voters; and (3) the employer did not provide phone numbers for any of its employees on the list, although the employer did not maintain the phone numbers in any formal database or system.  In joining to set aside the election, Chairman Miscimarra relied only on the finding that about 90% of the addresses on the voter list were incorrect.  Chairman Miscimarra would find that the omission of employee phone numbers from the voter list did not independently warrant setting aside the election because the phone numbers were not available to the employer.  He did not reach the question whether the omission of 15 employees from the list independently would require a new election.

In Re: Request for Rulemaking Regarding Reconsideration of IBM Corp., 341 NLRB 1288  341 NLRB 1288 (2004) (11-CA-019324, 11-CA-019329 and 11-CA-019334)  (May 3, 2017)

The Board denied a request that the Board use its rulemaking power to reverse its 2004 ruling and extend Weingarten rights to non-union employees.  (Weingarten rights come from a U.S. Supreme Court ruling that union workers are entitled to have a representative with them during any interview that could result in disciplinary action.)

Dish Network LLC, 365 NLRB No. 47 (April 13, 2017)

The employer violated Section 8(a)(1) of the Act by maintaining an Arbitration Agreement that employees would reasonably construe to prohibit accessing the Board’s processes.  Acting Chairman Miscimarra noted that the Agreement did not in any way qualify the requirement that all disputes arising out employment be resolved in arbitration.  The Agreement’s confidentiality provision independently violated Section 8(a)(1) because it prohibited employees from discussing “all arbitration proceedings, including but not limited to hearings, discovery, settlements, and awards,” which are terms and conditions of employment.  Thus, under the NLRA, employees have a right to discuss arbitration proceedings with coworkers.  The employer also violated Section 8(a)(1) when it instructed an employee not to discuss his discipline with his coworkers.

Essendant Co., 365 NLRB No. 46 (March 16, 2017)

The employer did not violate Section 8(a)(1) by maintaining a handbook rule which stated “distribution or posting of advertising material, handbills, or printed or written literature of any kind is prohibited at any time in work areas.”  The General Counsel argued unsuccessfully that employees would reasonably read the rule to prohibit the distribution of electronic material during nonworking time on computers in work areas, which is allowed during non-working time if the employees have access to the employer’s e-mail system, under Purple Communications.  Acting Chairman Miscimarra, who agreed that the rule is lawful, did not rely on the application of the “reasonably construe” standard and emphasized that he believes that employers should be able to limit the use of their email systems to business purposes as held in Register Guard.

In-N-Out Burger, Inc. 365 NLRB No. 39 (March 21, 2017)

The employer violated Section 8(a)(1) by unlawfully maintaining a “no buttons” policy and by unlawfully enforcing that policy against employees wearing a small, quarter-size “Fight for Fifteen” button.  The employer did not demonstrate that the wearing of such a button would unreasonably interfere with its public image sufficient to establish “special circumstances” that would justify an exception to the general rule that employees have a statutory right to wear union buttons or insignia in the workplace.  Notably, the employer allowed employees to wear “Merry Christmas” and “In-N-Out Foundation” buttons in the past, which were two to three times larger in diameter than the “Fight for Fifteen” button – casting doubt on any claim of special circumstances.

Categories: Labor Law Blog