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Labor and Employment Update - Winter 2015

02.12.15

THE NLRB MAKES IT EASIER FOR EMPLOYEES TO UNIONIZE

The National Labor Relations Board recently delivered a “one-two punch” to employers by issuing a decision and adopting a rule that will make it easier for employees to unionize.  First, by a 3-2 majority, the NLRB in Purple Communications, Inc. v. Communications Workers of America, held that, effective immediately, employees who have been given access to their employer’s email system in the course of their employment will, with limited exception, have the right to use that email system during non-work hours for union organizing and to discuss wages, hours, and other terms and conditions of employment.  This case represents a fundamental change in the law.  It overturned the NLRB’s 2007 decision in The Guard Publishing Co. d/b/a The Register-Guard and Eugene Newspaper Guild, CWA Local 37194, which the Board explained was so “clearly incorrect” that it could not stand.  According to the NLRB, in The Guard Publishing, too much emphasis was placed on employers’ property rights in light of the fact that email has become the predominant means of employee communication.

Now, under Purple Communications, an employer can prohibit use of its email system for union organizing activities only in certain specific circumstances.  Such use can be prohibited if the employer can show that it has uniformly applied a ban on all non-business email and that this ban is necessary to avoid network damage or overloads due to excessive use or to maintain production.  To say that this exception is extremely limited is obvious given what the exception likely would entail.  Indeed, it seems apparent that, among other things, most employers will not be find it workable or desirable to discipline every employee each and every time he/she uses work email to communicate, for example, with a spouse about child care or dinner.  Also, while employers still may restrict such use during “working time,” it is important to note that the Board generally views meal periods and other breaks as “nonworking time.”  Further, determining if an employee actually was on a break when sending/reading an email can be difficult for an employer.  Moreover, the Board failed to answer whether, to be protected, both the sender and recipient of the email must be on nonworking time when drafting, sending or reading the communication.  

On the bright side – to the extent there is one for employers - the holding applies only to employees who already have been provided access to an employer’s email.  No employer is required to provide email so its employees can use it for union organizing activities.  Also, the Board specifically stated:

Our decision does not prevent employers from continuing, as many already do, to monitor their computers and email systems for legitimate management reasons, such as ensuring productivity and preventing email use for purposes of harassment or other activities that could give rise to employer liability.        

That said, employers must ensure, though, that they do not increase their monitoring efforts to focus on protected activity or during an organizational campaign or else they will risk being found guilty of unlawful email surveillance.  Further, under Purple Communications, employers still may caution their employees that they do not have an expectation of privacy in their emails.    
 
Second, on December 12, 2014, the NLRB, again by a 3-2 majority, adopted a rule that will significantly limit an employer’s ability to respond to a union’s efforts to organize and to provide its employee’s with complete information on the advantages and disadvantages of unionizing or remaining unrepresented.  According to the Board, it adopted the rule “to modernize and streamline the process for resolving representation disputes.”  The changes will take effect on April 14, 2015.  

The new rule has many of the controversial measures the Board attempted to implement in 2011.  While the 2011 rule went into effect on April 20, 2012, it was invalidated a short time thereafter by the courts because it was not promulgated by a quorum of three Board Members.  The new rule adopted last month will not suffer from the same fate – a full quorum of confirmed Board Members issued the Notice of Proposed Rulemaking.  Employers must be aware that, among other things, the new rule: (1) requires employers to provide additional contact information (personal telephone numbers and email addresses) in voter lists immediately upon the filing of a petition; (2) provides for electronic filing and transmission of election petitions and other documents; (3) requires employers to declare all legal positions within days of the petition filing or risk possible waiver; (4) materially limits preliminary litigation of relevant issues by allowing written briefs only if the Regional Director determines they are necessary and by limiting the scope of pre-election hearings such that important questions concerning the election may be answered only after the election is held; and (5) removing the 25-day automatic stay of elections following the Regional Director’s decision to order an election.

Takeaway.  As a result of these two actions by the NLRB, employers should  consider revising their email policies to allow employees who have been granted access to company email to use that email during non-work hours to discuss wages, hours, and terms and conditions of employment (or revise the policies to implement and apply uniformly a complete ban on the use of email for non-work related matters, provided the employer can justify this ban).  Also, these actions have made it all the more important for employers to consider proactively assessing and dealing with workplace issues, implementing a rapid response procedure for dealing with a petition if one were to be filed, educating employees on the benefits of remaining union-free, and compiling ahead of time the information that would need to be provided in the event of a representation proceeding.   

By:  Lee D. Moylan
lmoylan@klehr.com


“DOUBLE JEOPARDY” IN EMPLOYEE DISCIPLINE  
LESSONS LEARNED FROM THE NFL’S MISHANDLING OF THE RAY RICE MATTER


Under the labor law concept of workplace/industrial double jeopardy, an employee cannot be disciplined twice for the same act when all of the relevant facts were available to the employer at the time of the first punishment.   Where the first punishment has become final (as compared to a temporary/initial step such as a suspension pending the outcome of an investigation), the employee cannot be penalized a second time for the same infraction.  Furthermore, even where a collective bargaining agreement does not contain a “just cause” provision and thus is not subject to the principle of double jeopardy, discipline under the contract must still be fair and consistent, and a disciplinary determination may not be arbitrary or capricious.  The only exception to this general rule is where the second disciplinary action is based on new evidence or facts which were unknown to the employer at the time of the initial discipline.

A high-profile example of this principle arose out of the suspension of National Football League player Ray Rice.  Approximately one year ago, Rice and his then-fiancée, Janay Palmer, were involved in a physical altercation in and around an elevator at a hotel and casino in Atlantic City, New Jersey.  Both Rice and Palmer were arrested and charged with misdemeanor assault, but neither pursued charges against the other.  In the days following the incident, a hotel surveillance video of the scene outside of the elevator was shown on television and was admittedly seen by NFL Commissioner Roger Goodell.  However, Goodell decided to refrain from taking any disciplinary action against Rice until the criminal proceedings concluded.  

Rice was eventually indicted on one count of aggravated assault, but was able to resolve the criminal case by entering into a pre-trial intervention program.   Upon the conclusion of the criminal case, Goodell conducted a pre-discipline meeting with Rice and Palmer, and following that meeting, Goodell issued a discipline letter suspending Rice for two (2) games and fining him an additional game’s salary.

Following the issuance of the discipline letter, there was a large public outcry criticizing the punishment as insufficient for an act of domestic violence.  In response, Goodell sent a letter to all NFL team owners stating that he “didn’t get it right” and advising that he was changing the league’s Personal Conduct Policy to increase the level of punishment for players charged with first-time offenses of domestic violence.   However, noting that he could not retroactively apply the new policy, Goodell contacted Rice to assure him that the new policy did not alter the punishment already rendered in the discipline letter.

Approximately one month later, a second video (capturing what occurred inside the elevator) was aired publicly and seen by Goodell.  In response to viewing the second video, Goodell issued another discipline letter, now imposing an indefinite suspension on Rice.  In the letter, Goodell alleged that the heightened sanction was based on the fact that Rice presented a “starkly different sequence of events” to the NFL than what was captured in the second video.  Rice, through the union, appealed the indefinite suspension and submitted the matter to arbitration, arguing that: (1) he had in fact provided an accurate description of the event to Goodell and the NFL during the pre-discipline meeting; (2) Goodell and the NFL were aware of all of the relevant facts prior to issuing the initial discipline letter; and (3) the NFL’s issuance of the indefinite suspension was an attempt to punish Rice twice for the same action.  

The arbitrator reviewing the case sided with Rice, noting the following key issues:  

  • prior to conducting the pre-discipline meeting, Goodell had seen the initial video which captured the events that transpired directly outside of the elevator, including Rice attempting to carry an unconscious Palmer out of the elevator and dropping her on the floor;

  • prior to issuing the initial discipline, Goodell and the NFL were aware that there was a camera inside of the elevator that likely had video footage of what transpired between Rice and Palmer, yet never requested a copy of such video;

  • prior to issuing the initial discipline, Goodell and the NFL had a copy of the complaint underlying Rice’s arrest which stated that Rice committed assault “by striking [Palmer] with his hand, rendering her unconscious;”

  • during the pre-discipline meeting, Rice told Goodell that he had hit Palmer, and he demonstrated the manner in which he struck her;

  • Palmer testified at arbitration that Rice did indeed tell Goodell at the pre-discipline meeting that he had struck her and that she was unconscious, and that Rice had demonstrated to Goodell the manner in which he struck her; and

  • notes taken by the union representative during the pre-discipline meeting stated that Rice told Goodell that he struck Palmer and that she was knocked unconscious.


Based on all of the foregoing evidence, the arbitrator determined that Rice did not lie or mislead the NFL during the pre-discipline meeting and, after reviewing Rice’s description of the assault of Palmer and all other information in his possession, Goodell determined that the appropriate punishment was a two-game suspension and a fine equal to an additional game’s pay.  Moreover, the arbitrator found that the second video did not provide any new facts upon which Goodell could base the increased suspension, and thus, the imposition of the indefinite suspension was arbitrary and must be vacated.     

So, what should employers learn from the Ray Rice matter? First and foremost, always conduct an adequate investigation prior to issuing any final disciplinary action.  If you feel that you initially do not have all of the relevant information, consider imposing a temporary suspension pending the outcome of the investigation - - and then render your final disciplinary action after obtaining all relevant information and concluding your investigation.  Next, ensure that your policies on employee conduct and disciplinary action are clear, and that they are applied uniformly and consistently.  Finally, don’t attempt to reverse course on previously issued discipline simply because you receive criticism from other employees or the public.  As the NFL has surely learned from the Ray Rice matter, an attempt to save face by increasing the level of punishment previously rendered will not survive a legal challenge if the initial discipline was final in nature and no new facts or evidence have been discovered thereafter to support a modification of the initial disciplinary action.  

By:  Carianne P. Torrissi
ctorrissi@klehr.com


RECENT DEVELOPMENTS IN NEW JERSEY’S WHISTLEBLOWING LAW

New Jersey’s Conscientious Employer Protection Act (“CEPA”) is one of the most expansive whistleblowing statutes in the country.  CEPA, unlike most statutes, provides a successful plaintiff with the potential for recovering uncapped compensatory and punitive damages, as well as attorneys’ fees.  2014 saw some interesting developments for CEPA, both in the legislative and judicial arenas.  

In October 2014, the New Jersey Senate’s Labor Committee approved bill S768, which would expressly provide public employees with protection against retaliation when reporting a “substantial waste of public funds by a governmental entity or . . . an abuse of authority or gross mismanagement.”  Bill S768 was prompted by the “Bridgegate” scandal, the term commonly used to refer to the incident in September 2013 where employees in the New Jersey Governor’s office allegedly directed closing lanes at the toll plaza leading to the George Washington Bridge.  Bill S768 is currently being considered by the Senate for approval.  

Earlier in 2014, in Hitesman v. Bridgeway, Inc., the Supreme Court ruled that to bring a CEPA claim based on complaints concerning “improper quality of patient care or conduct” or involving “a clear mandate of public policy concerning the public health,” a plaintiff must identify, at a minimum, a source of law or other authority setting forth a standard demonstrating a reasonable belief the employer engaged in the alleged misconduct.  In Hitesman, the plaintiff was a registered nurse working for a nursing home.  He was fired after he complained to management about the facility’s management of infectious diseases among patients and also anonymously contacted government agencies and the press regarding his concerns.  Hitesman also released patient records to a television reporter, which were partially redacted, in violation of his employer’s confidentiality policy and HIPPA.  The Supreme Court rejected his CEPA claim because none of the authorities Hitesman relied upon in order to show the legal standard being violated, such as a nursing code of ethics, were sufficient to show a law or public policy being violated.

In Stark v. South Jersey Transit Authority,  the Appellate Division ruled that illegal recording of a conversation is not protected activity, entitled to protection under CEPA.  In Stark, defendant SJTA eliminated two unionized positions.  At a meeting to discuss the positions to which the plaintiffs would be transferred based on seniority, the plaintiffs recorded a private conversation between the Human Resources manager and Deputy Executive Director, in violation of the New Jersey Wiretap Act. Upon learning of the recording, SJTA fired one of the plaintiffs and suspended the other.  The Appellate Division ruled that SJTA was justified in taking the action it did as the plaintiffs’ recording of the conversations violated both the law and company policy, thus, there was no “protected activity” under CEPA. 

Finally, in Wilson v. GEM Ambulance, L.L.C., the Appellate Division reminded us that CEPA protects an employee who blows the whistle on conduct of “another employer with whom there is a business relationship.”  In Wilson, the plaintiff was employed by the defendant ambulance service as an emergency medical technician.  GEM received a complaint from a nursing home to which it provided transportation services, claiming that Wilson had made false reports of elder abuse at its facility to a patient’s daughter.  Subsequently, Wilson was terminated and she filed suit under CEPA.  The trial court granted summary judgment in favor of GEM, in part due because it found the wrongdoing was being committed by an “independent third-party.”  The Appellate Division reversed, finding that although the evidence of the business relationship between GEM and the nursing home was “scant,” that was enough to survive summary judgment.  

These developments demonstrate that CEPA continues to evolve, both through legislative action and judicial decisions.  Given this, employers are encouraged to speak with their labor and employment counsel when considering taking action against an employee for conduct that may be considered whistleblowing.  

By: Diana L. Eisner
deisner@klehr.com