Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB

Practical Law Legal Update 5-566-2619 (Approx. 7 pages)

Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB

by Practical Law Labor & Employment

Background

Durham School Services, L.P. employed Cheesman as a school bus driver for five years. Cheesman was very active in a union organizing campaign that began in 2011. The union won an election that was held in November 2011. However, the employer successfully objected to that election and the NLRB set the results aside and ordered a re-rerun election.

On March 6, 2012, the Durham general manager terminated Cheesman after her California state bus driver certification lapsed because she was unable to pass the required driving test. Cheesman testified that she had failed because the test was conducted on a large bus with air brakes, which was not the type of bus she was accustomed to driving. It was undisputed that she had not had much opportunity to practice or train on the larger buses since there was a shortage of qualified trainers.

Cheesman did not receive notice of her termination until she arrived for the union election on March 9, 2012. Cheesman testified that on this day, she entered the general manager's office to pick up her pay stub and was informed that she was terminated because her certification expired. When she argued that there were other employees whose certification had expired but who were not terminated, the general manager responded that this was a new policy and that she could return to work as soon as she re-acquired her certification.

Cheesman went to the voting area but was informed that her vote would be challenged because she was no longer a Durham employee. Cheesman voted by a challenged ballot and returned home. After the union and employer stipulated to resolve some challenged ballots and counted those ballots, the union lost the election by two votes. The union filed objections to the election.

On March 20, 2012, after receiving some training on larger buses from a certified trainer, Cheesman passed her driving test. Durham's general manager told Cheesman to report for work the next day. Cheesman resumed work at the same rate of pay and seniority that she had originally held.

The union filed unfair labor practice (ULP) charges with the NLRB alleging in part that at the time of the election, Durham unlawfully:

Terminated Cheesman for supporting the union and to interfere with her right to vote in the election.
Maintained an overbroad:
- social networking policy; and
- off-duty access policy.

The NLRB consolidated the hearing on the union's election objections with these three ULP charges.

The social networking policy states:

It is also recommended that the employees of . . . Durham School Services . . . limit contact with parents or school officials, and keep all contact appropriate. Inappropriate communication with students, parents, or school representatives will be grounds for immediate dismissal.

Communication with coworkers should be kept professional and respectful, even outside of work hours.

Employees who publicly share unfavorable written, audio or video information related to the company or any of its employees or customers should not have any expectation of privacy, and may be subject to investigation and possibly discipline.

The off-duty employee rule states:

Off-duty employees should not enter (except for legitimate business reasons) any Company facility not open to the general public and are prohibited from interfering or causing a disturbance with an on-duty employee's performance of his/her work duties.

The ALJ held that Durham committed a ULP by terminating Cheesman. The ALJ found that:

The NLRB's General Counsel made a prima facie showing that Cheesman's union activity was a motivating factor in Durham's decision to terminate her, or at the minimum, to inform her that she had been terminated under the Wright Line causation test (251 N.L.R.B. 1083 (1980), enf'd 662 F.2d 899 (1st Cir. 1981)).
Durham failed to rebut that prima facie showing with evidence that it would have terminated Cheesman absent her union activity. Durham had not consistently terminated drivers whose certification lapsed and failed to introduce evidence explaining the suspicious election-day timing for notifying Cheesman about her termination.

While reviewing the challenged employment policies, the ALJ noted that:

Maintaining an invalid rule limiting or prohibiting solicitation, loitering and access during an election period may be objectionable conduct warranting setting aside an election, since that type of rule has a reasonable tendency to chill or interfere with employees' pro-union campaign activities during the election period (Jury's Boston Hotel, 356 N.L.R.B. slip op. 114 (Mar. 28, 2001));
Off-duty employee access rules are invalid if they improperly prohibit off-duty employees from accessing outside non-working areas of the property, such as the picnic table outside where employees eat (Tri-County Med. Ctr, Inc., 222 N.L.R.B. 1089, 1089 (1976)).
Policies limiting employees' rights to express themselves may be unlawful if they could be interpreted to restrict Section 7 activity or would reasonably tend to chill employees in the exercise of their Section 7 rights, such as discussing their employment terms and conditions with each other or third parties (Lutheran Heritage Village-Livonia, 343 N.L.R.B. 646, 647 (2004) and Lafayette Park Hotel, 326 N.L.R.B. 824, 825 (1998) enf'd 203 F.3d 52 (D.C. Cir 1999)).

The ALJ found that the social networking policy did not expressly restrict Section 7 activity, but it contained no limiting language and was so overbroad and vague that it could reasonably be construed as extending to Section 7 activity. It reasonably would tend to chill employees from engaging in the Section 7 activity of interacting with fellow employees, parents and public officials who used Durham's services. In particular, the ALJ found unlawful as unreasonably broad and vague the rules that employees:

Limit contact with parents or school officials, because there were no explanations or limitations for that rule.
Keep all contact (with parents and school officials] appropriate, because there was no delineation between appropriate and inappropriate contact or examples of either.
Engage in only professional and respectful communication with coworkers even outside of work hours, because there was no definition for those terms or examples of what kind of communication would violate that rule.
Must not publicly share unfavorable information about the company, its employees or customers because there was no definition of unfavorable or examples of what that term included.

The ALJ also held that the off duty access policy was unlawful under Tri-County Medical Center.

Based on the union's election objections and each of Durham's ULPs (the unlawful termination and invalid social networking and off duty employee access policies), the ALJ concluded that:

Durham interfered with the free and fair choice of a determinative number of voting unit employees.
The election results did not reflect the employees' free and fair choice and should be set aside and a new election should be held.

Durham appealed the ALJ's decision by filing exceptions with the Board.

Outcome

The Board unanimously affirmed the ALJ's findings that:

Under the Wright Line causation test, Durham violated Sections 8(a)(3) and (1) of the NLRA by terminating Cheesman:
- because of her union organizing activities; and
- to discourage her from voting in the March 9, 2012 representation election.
The second election's results should be set aside based on Durham's discharge of Cheesman.

The majority of the panel (Chairman Pearce and members Hirozawa and Schiffer) concluded that the maintenance of the unlawful social networking and off-duty access policies also each warranted setting aside the results of the second election. Members Miscimarra and Johnson joined their colleagues in setting aside the election without reaching the ALJ's analysis of Durham's social networking and off-duty access or policies.

The Board unanimously:

Ordered that the election results be set aside.
Directed the applicable NLRB regional director to hold a third secret ballot election.
Revised the notice in this case to include:
- a hyperlink to an electronic copy of the Board's decision;
- a QR code linked to an electronic copy of the Board's decision; and
- an address to which employees can write, and a phone number which employees can call, to get a printed copy of the Board's decision
Noted that the standard notice language in all future Board orders would similarly be changed to include a hyperlink, QR code and contact information to obtain the Board decision related to that order.

Practical Implications

The termination of a union supporter on an election day is a fairly obvious ground for setting aside an NLRB election, but overbroad employment policies buried in employment handbooks may independently trigger ULPs and supporting identical results. Here, the employer's actions and policies gave the union a third attempt at winning the election more than three years after the organizing campaign began. Employers should consider reviewing their employment policies and handbooks for overbroad language that might provide unions with extra opportunities to win elections and get certified as collective bargaining representatives.

This case also starts a new age in Board orders. It reflects the NLRB's continuing drive to increase employee awareness of the NLRA, the NLRB and the NLRB's web presence, even if the agency cannot require employers to post its "Rights Under the NLRA" poster in the workplace (see Legal Update, NLRB Will Not Petition the Supreme Court to Review Invalidation of its Notice Posting Rule.

Discharge, Overbroad Social Networking and Off-duty Access Policies Compel New Union Election: NLRB | Practical Law