THE U.S. NLRB FINDS COMPANY CAN'T FIRE EMPLOYEE FOR DISCUSSING SALARY WITH OTHER EMPLOYEES

FROM U.S. NATIONAL LABOR RELATIONS BOARD

The National Labor Relations Board has found that a Texas engineering firm unlawfully fired an employee for discussing salary information with co-workers, and ordered the company to offer reinstatement and to pay back wages for the time out of work.

Under the board order, which issued February 8, Houston-based Jones & Carter, Inc. also must rescind its policy of forbidding employee discussion of salaries. The National Labor Relations Act protects the rights of workers to discuss their terms and conditions of employment, including wages.

In the absence of exceptions, the Board adopted the November 26 decision of Administrative Law Judge Margaret G. Brakebusch. During trial, company officials said the employee – a training coordinator - was fired for "harassing" other workers. But the judge noted that the same company officials told state unemployment investigators a different story, including that the employee was fired for discussing salaries with other workers, and that sharing such information was a "pet peeve" of the company.

As a result of the Board action, Jones & Carter offered the employee reinstatement to her former position, which she declined. The employer agreed to make the former employee whole by paying her backpay, 401(k) contributions, medical expenses and interest in the total amount of $107,000, to revise its policy to delete the prohibition on employees of discussing their salaries, and to post a Board Notice describing these actions.

AFL-CIO AND FLORIDA PERFORMING ARTS CENTER RESOLVE BACKPAY ISSUES

FROM: U.S. NATIONAL LABOR RELATIONS BOARD

Settlement ends long-running dispute at Florida performing arts center

NLRB Regional Director Margaret J. Diaz today approved the resolution of all pending litigation in a long-running dispute between the Raymond F. Kravis Center for the Performing Arts, Inc. in West Palm Beach, FL, and the International Alliance of Theatrical Stage Employees, AFL-CIO, Local 500.

The resolution provides for approximately $2.2 million in backpay to 248 employees who were unlawfully denied employment over more than a decade. The money is to be paid in two installments, the first of which is due by January 15, 2013 and the second of which is due by January 15, 2014.

In addition, the parties signed a collective-bargaining agreement, effective December 21, 2012 through June 30, 2017, under which the entertainment venue recognizes the union as the bargaining agent for stagehands working on Kravis productions, and agrees to obtain workers through the Local 500 hiring hall. The contract also reinstates three department heads whose positions had been eliminated.

The Board ruled in September 2007 that the theatrical venue violated federal labor law by failing to bargain to impasse with its union, IATSE, by unilaterally changing wages and conditions of employment, and by refusing to use the union’s hiring hall in more than 700 productions staged since charges were filed in 2001. The Board’s order was enforced by the DC Circuit Court in 2008. In July, the NLRB issued a compliance specification setting the backpay amount due to carpenters, electricians and other skilled laborers at $2.6 million.

The center had taken certain other steps to comply with the Board Order in 2009.

In addition to their agreement resolving the compliance matter, Kravis Center and the Union entered into a separate agreement requiring Kravis Center to remedy allegations of additional unfair labor practices committed in 2011 and 2012 that had been set forth in a complaint issued in July. In turn, the NLRB approved the union’s withdrawal of charges in the cases covered by the complaint, conditioned on the terms of the agreement being carried out.

LABOR JUDGES LAY DOWN THE LAW

FROM: U.S. NATIONAL LABOR RELATIONS BOARD,

The National Labor Relations Board’s Division of Judges disposed of 645 cases in FY 2012, issuing 207 decisions and settling 438 cases. Half of the decisions issued within 82 days of the close of hearing and within 41 days of the receipt of briefs or submissions.

The high ratio of settlements to decisions reflects a continuing effort by the Division to encourage the resolution of cases by the parties themselves, through judges’ involvement in pre-trial conference calls and on-site meetings.

Total case intake increased slightly from the previous year, from 1,161 to 1,192. The total case intake includes all cases docketed with the Division by NLRB regional offices at the time a complaint is issued by the General Counsel. Many of the docketed cases are withdrawn or settled by the regional offices before the assignment or involvement of an NLRB judge. Absent settlement, judges conduct trials and issue initial decisions that may then be appealed to the 5-member Board.

The NLRB employed 37 Administrative Law Judges at the end of the fiscal year, compared to 40 at the end of FY 2011. All ALJ decisions are available through this page.

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LABOR BOARD UPHOLDS FIRING OF EMPLOYEE FOR SARCASTIC FACEBOOK POSTING REGARDING EMPLOYER

FROM: U.S. NATIONAL LABOR RELATIONS BOARD
The National Labor Relations Board has found that the firing of a BMW salesman for photos and comments posted to his Facebook page did not violate federal labor law, because the activity was not concerted or protected.
The question came down to whether the salesman was fired exclusively for posting photos of an embarrassing and potentially dangerous accident at an adjacent Land Rover dealership, or for posting mocking comments and photos with co-workers about serving hot dogs at a luxury BMW car event. Both sets of photos were posted to Facebook on the same day; a week later, the salesman was fired from Knauz BMW in Lake Bluff, IL.

The Board agreed with Administrative Law Judge Joel P. Biblowitz, who found after a trial that the salesman was fired solely for the photos he posted of a Land Rover that was accidently driven over a wall and into a pond at the adjacent dealership after a test drive. Both dealerships are owned by the same employer.

In a charge filed with the NLRB, the salesman maintained that he was principally fired for posting photos and sarcastic comments about his dealer serving hot dogs, chips and bottled water at a sales event announcing a new BMW model. "No, that’s not champagne or wine, it’s 8 oz. water," the salesman commented under the photos. Following an investigation,the regional office issued a complaint. Judge Biblowitz found that this activity might have been protected under the National Labor Relations Act because it involved co-workers who were concerned about the effect of the low-cost food on the image of the dealership and, ultimately, their sales and commissions.

The Land Rover accident was another matter. A salesperson there had allowed a customer’s 13-year-old son to sit behind the wheel following a test drive, and the boy apparently hit the gas, ran over his parent’s foot, jumped the wall and drove into a pond. The salesman posted photos of the accident with sarcastic commentary, including: "OOPS".

The National Labor Relations Act protects the group actions of employees who are discussing or trying to improve their terms and conditions of employment. An individual’s actions can be protected if they are undertaken on behalf of a group, but the judge found, and the Board agreed, that was not the case here.

As Judge Biblowitz wrote, "It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees’ terms and conditions of employment. It is so obviously unprotected that it is unnecessary to discuss whether the mocking tone of the posting further affects the nature of the posting." Because the posts about the marketing event did not cause the discharge, the Board found it unnecessary to pass on whether they were protected.

However, the three-member panel differed in its opinions of a "Courtesy" rule maintained by the employer regarding employee communications. Chairman Mark Gaston Pearce and Member Sharon Block found the language of the rule to be unlawful because employees would reasonably believe that it prohibits any statements of protest or criticism, even those protected by the National Labor Relations Act.

Dissenting, Member Brian E. Hayes found that the employer’s rule was "nothing more than a common-sense behavioral guideline for employees" and that "nothing in the rule suggests a restriction on the content of conversations (such as a prohibition against discussion of wages)".

The Board ordered Knauz BMW to remove the unlawful rules from the employee handbook and furnish employees with inserts or new handbooks. The decision, dated Sept. 28 but made public today, was the Board’s first involving a discharge for Facebook postings; other such cases are pending before the Board.

COURT UPHOLDS NLRB UNION RECOGNIZATION RULING

FROM: U.S. NATIONAL LABOR RELATIONS BOARD

In a decision issued Thursday, the U.S. Court of Appeals for the Sixth Circuit upheld a 2010 National Labor Relations Board ruling that an employer and union did not violate federal labor law by entering into an agreement establishing principles for bargaining if employees selected union representation.
　

The case involved an agreement signed by the United Auto Workers union and auto parts manufacturer Dana Corp. setting ground rules for union organizing at a plant in St. Johns, Michigan, and establishing a framework for negotiations if a majority of workers chose the union. After the agreement was signed, several workers filed charges with the NLRB alleging that the agreement constituted an unlawful recognition of the union. Ultimately, the union did not win majority support and the plant closed, but the case continued.

While acknowledging "thoughtful majority and dissenting opinions" in the 2-to-1 Board decision, the Court deferred to the Board’s conclusion that the agreement did not unlawfully recognize the union and "did no more than create a framework for future collective bargaining." It further found that "the Board was within its discretion to allow some substantive terms to be determined between the employer and union prior to recognition, as long as that agreement did not ultimately impact employees’ choice regarding union representation."

In upholding the Board decision, the Court denied a petition for review filed by two of the workers who originally filed charges.

The Court found that the Board had properly distinguished the Dana agreement from one that was held to be unlawful in Majestic Weaving, 147 NLRB 859 (1964).