NLRA - Famighetti & Weinick

Court Decides Unfair Labor Practices Case

Famighetti & Weinick — Wed, 11 Apr 2018 11:12:19 GMT

The National Labor Relations Act (“NLRA”) grants several rights to a wide array of employees in the private sector regardless of whether or not the employee is part of a union. For example, the NLRA allows covered employees to join as a group in an effort to address and improve the terms and conditions of employment, such as wages and working conditions. Today’s Long Island labor law blog discusses a recent unfair practices case decided by New York’s federal appellate court.

Section 8 of the NLRA provides an extensive list detailing certain actions by employers that are prohibited and constitute an unfair labor practice. For example, an employer cannot restrict, limit, or interfere with a covered employee’s rights under the NLRA.

On March 15, 2018, in Novelis Corp., v. NLRB, New York’s Second Circuit Court of Appeals addressed various unfair labor practices committed by Novelis Corp., an aluminum manufacturer, after employees from the Oswego, New York plant location began to campaign in an effort to form a steelworker’s union.

After Novelis announced to employees that they planned to eliminate Sunday premium pay and that they would no longer allow holiday and vacation days to play a part in overtime eligibility, a group of employees began campaigning in an attempt to form a union. Eventually, Novelis refused to voluntarily recognize the creation of a union and instead, decided to hold an election that would determine whether it would accept the voluntary recognition request.

Numerous violations of Section 8 of the NLRA ultimately tainted the election results. For example, Novelis engaged in unfair labor practices by threatening employees with negative consequences if they voted pro-union, prohibiting employees from wearing union related apparel, and demoting a pro-union employee. As a result, pro-union employees lost the election and were unable to unionize.

Shortly thereafter, pro-union employees filed a charge with the National Labor Relations Board (“NLRB”) alleging that Novelis violated Section 8 of the NLRA by engaging in unfair labor practices. The NLRB agreed and decided to, among other things, issue a bargaining order forcing Novelis to negotiate with the union that lost the election. Novelis appealed the NLRB’s decision.

On appeal, Novelis lucked out. The Second Circuit agreed with the NLRB’s determination that Novelis had violated the NLRA. However, the Second Circuit disagreed with the NLRB’s decision to issue the bargaining order based on “changed circumstances,”and refused to enforce the order. The court noted that circumstances warranting a bargaining order must be based on unlawful conduct occurring at the time the order is issued and not at the time the unfair labor practice occurred.

One of the main changed circumstances discussed in Novelis Corp., was the significant employee turnover that had occurred during the two-year lapse between when the unlawful conduct occurred and the NLRB’s decision to issue the bargaining order. Approximately one-third of the current employees had not been employed by Novelis at the time the unfair labor practices occurred.

Accordingly, the Second Circuit decided that this and other changed circumstances, did not warrant enforcing the bargaining order. The court recognized that, assuming the bargaining order ultimately resulted in the formation of a union, the result could unfairly conflict with possible anti-union views held by the new wave of employees at Novelis who had not even been involved or affected by the prior unfair labor practices.

The pro-employer decision in Novelis Corp., serves as a reminder that even though a court may ultimately rule in favor of an employer who committed serious violations, avoiding unfair labor practices goes a long way toward preventing lengthy and expensive litigation.

Famighetti & Weinick, PLLC are Long Island labor lawyers. If you have a question about unfair labor practices, rights under the NLRA, or any other employment matter, call one of our Long Island employment lawyers at 631-352-0050 to schedule a free consultation. You can also contact us on the internet at https://www.linycemploymentlaw.com or on Facebook.

Today’s labor law blog was written by Thalia Olaya, a Hofstra Law School intern.

Union Retaliation Case

Famighetti & Weinick — Fri, 28 Apr 2017 17:12:09 GMT

An employee called his boss a “NASTY MOTHER F***ER” on Facebook and further wrote about the boss: “F*** his mother and his entire f***ing family.” His boss fired him. Was this a wrongful termination? The answer may be surprising. Today’s employment law blog from Long Island employment lawyers Famighetti & Weinick PLLC explains.

The following facts are taken from NLRB v. Pier Sixty, LLC, a case decided by the Second Circuit Court of Appeals on April 21, 2017.

Hernan Perez was a server for Pier Sixty, a catering company. In 2011, Pier Sixty’s employees sought union representation. The organizing campaign was “tense,” with management threatening employees that they could be fired for union activities. Nonetheless, the employees unionized via a vote on October 27, 2011.

Just before the election, a Pier Sixty supervisor directed Perez and two other workers to stop chatting and to move. Perez was upset by the supervisor’s attitude. Shortly after this incident, Perez took an unauthorized break from working and posted a message on Facebook about “Bob,” the supervisor:

Bob is such a NASTY MOTHER F***ER don’t know how to talk to people!!!!!! F*** his mother and his entire f***ing family!!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!!

The post was visible to Perez’s Facebook friends and ten co-workers. It was also visible publicly. Pier Sixty management learned about the post and then Perez removed the post on October 28, 2011. On November 9, 2011, Pier Sixty fired Perez, who filed a charged with the NLRB against Pier Sixty alleging that his post constituted protected concerted activity and that his termination was retaliation for that protected conduct.

In April 2013, an NLRB administrative law judge found that Pier Sixty had indeed terminated Perez in retaliation protected activity. The decision was affirmed by a panel of the NLRB board. In other words, the National Labor Relations Board determined that Perez was lawfully allowed to make his Facebook post about his boss and that the company could not legally terminate Perez because of his post. How could that be?

The National Labor Relations Act (NLRA), is the federal law which regulates unions. Section 7 of the Act provides employees with the right to “engage in . . . concerted activities for the purpose of collective bargaining or other mutual aid or protection.” Section 8 of the act prohibits employers from terminating employees who engage in protected activity described by Section 7. Employers, however, may terminate employees who may have engaged in protected activity, but did so in an abusive manner.

At issue in Perez’s case was whether the obscenities he used in his Facebook post were abusive such that he lost the protection of the NLRA. The Court of Appeals reviewed the history of the development of the legal tests used to determine whether obscenities are protected before noting that the NLRB has now adopted a nine factor totality of the circumstances test to use for social media cases, such Perez’s case.

The Court of Appeals expressed concern about the fairness of the test, but applied it anyway, because Pier Sixty did not challenge the validity of it. Instead, the Court looked at whether the Facebook comments were so egregious that Perez should not be protected by the NLRA.

The Court was troubled by Perez’s “vulgar attacks on [the boss] and his family,” but noted that the post included “workplace concerns” including management’s treatment of employees and the impending election. The Court further noted that management had “demonstrated hostility” towards workers and so Perez’s post was “part of a tense debate” about mistreatment.

The Court also found it important that Pier Sixty had tolerated profanity in the workplace before and had previously terminated employees for using obscenities. Notably, the Court also determined that the location the comments — online — was important because online forums, such as Facebook, are a “key medium” of communication.

In reviewing all the factors, the Court held that the NLRB did not improperly find that Perez’s conduct was egregious enough to lose NLRA protections. In other words, as inflammatory as Perez’s comments were, they were nonetheless protected as comments concerning workplace conditions. The Court noted, however, — and it is important to note here — that the facts in the Perez case were at the “outer-bounds” of protected activity.

If you have questions about the NLRA, NLRB, concerted activity, or employment law questions, contact Famighetti & Weinick PLLC, employment lawyers on Long Island. We can be reached at 631-352-0050 or online at https://www.linycemploymentlaw.com.