This move follows the filing of lawsuits in September by the U.S. Chamber of Commerce in South Carolina and the National Association of Manufacturers, the National Right to Work Legal Defense and Education Foundation and the National Federation of Independent Business in the District of Columbia seeking injunctions to bar the National Labor Relations Board from implementing the regulation.

As originally proposed, the rule would have advised employees only of their rights to unionize and engage in other protected activity.  The final rule lends some balance to those statements by adding that employees also have the right to refrain from engaging in such activities.  Employers must place 11 x 17 inch posters containing the prescribed language in the workplace and may need to publish the notices on the company intranet or internet site.  If 20 percent of workers are not proficient in English, the notices must also appear in the language used by the workers.

Failure to comply constitutes an unfair labor practice and may also suspend the six-month time limit for filing a charge.  Posters can now be downloaded from the Board’s website (www.nlrb.gov/poster), and will also be available in printed form from NLRB offices. 

The NLRB enforces the National Labor Relations Act which applies to employers based on type and volume of business.  Only the smallest of employers are not covered.

Proposed NLRB rules provide for “quickie” union elections 

Elections to determine union representation could be held as few as 10 days after a petition for an election is filed under rules the Board proposed in late June.  The comment period has ended and no date has been set for final Board action.  The controversial proposal reportedly generated more than 50,000 public comments and replies. 

The three-member majority said the rules’ purpose is to “fix flaws” in current procedures that cause unnecessary delay, allow wasteful litigation and fail to take advantage of modern technology.  The dissenting member described the purpose as “to effectively eviscerate an employer’s legitimate opportunity to express its views about collective bargaining.”  However the change is viewed, the proposed rules give employers less time to respond and fewer opportunities to appeal adverse decisions.

• A union typically files a petition for election with the NLRB when the union believes it has majority support.  Often, this is the first notice an employer has that its work force is being organized.  The proposed rules would require setting a pre-election hearing seven days after a hearing notice is served.   
• At the start of that hearing, the employer would be required to provide a comprehensive statement of position on issues including the Board’s jurisdiction over the petition; the appropriateness of the proposed unit; full names, work locations, shifts and job classifications of all individuals in the proposed unit; whose eligibility to vote the employer intends to contest and the basis therefor; any election bar; the type, dates, times and location of the election and eligibility period and all other issues the employer intends to raise at the hearing.
• Eligibility issues involving less than 20 percent of the unit would be decided after the election.
• Pre-election hearing decisions would not be appealable except in extraordinary circumstances, and appeals would not stay an election.
• Employers would be required to produce the final voter list two days after the direction of the election and include employee phone numbers and e-mail addresses on the final voter list.
• The NLRB would have the discretion to deny review of post-election rulings of the regional director.
• Post-election hearings would be set 14 days after ballots are tallied.

“Facebook firings” may violate National Labor Relations Act 

Mom’s advice that “if you can’t say anything nice, don’t say anything at all” is almost certainly unlawful if adopted as a company policy restricting employee use of social media under recent decisions and advice memoranda from the NLRB.

Policies that prohibit employees from depicting the company in any way without permission and from making disparaging remarks about the company or its employees violate employees’ rights to engage in protected concerted activities under the NLRA.  Disciplining employees for such activities also may violate the Act if by making such remarks, employees are engaging in protected concerted activities. 

Concerted activity includes formal and informal group activities and individual activities that logically grow out of collective concerns.  If (1) employees would reasonably construe the policy to prohibit protected activity; (2) the policy was created in response to union activity or (3) the policy was applied to restrict protected activity, the policy will violate the Act.  

Plainly egregious conduct such as sexual remarks is not protected and may be prohibited.  Factors to consider in determining whether misconduct forfeited the protections of the Act include:  (1) the place of the discussion, (2) the subject matter of the discussion, (3) the nature of the employee’s outburst, (4) whether the outburst was provoked by an employer’s unfair labor practice and (5) whether the conduct violated an employer policy.

The Court also found that Arizona’s requirement that employers in the state use E-Verify does not conflict with the federal government’s voluntary employment verification scheme because the consequences of not using E-Verify under the Arizona law are the same as the consequences under the federal program. In short, the consequence of not using E-Verify to verify the work authorization of new hires is forfeiture of an otherwise rebuttable presumption that an employer complied with immigration laws.

Federal and Colorado law requires government contractors to use E-Verify.  Efforts to pass legislation in Colorado to require other employers to use E-Verify so far have failed.

A non-competition agreement, like any other contract, must be supported by consideration. Courts have liberally interpreted what constitutes adequate consideration. For example, in this case, consideration may take the form of forbearance, where one party refrains from doing something that it is legally entitled to do. The Colorado Supreme Court reasoned that, because an employer may terminate an at-will employee at any time during employment, the employer’s forbearance from terminating the at-will employee in exchange for the employee signing a non-competition agreement constitutes adequate consideration.

The hospital, the secondary employer, selected a non-union contractor to perform construction work on the project. The union had a primary labor dispute with the non-union contractor over alleged sub-standard wages and benefits. The union sought to persuade the hospital to cease doing business with the non-union contractor by engaging in various forms of protest to publicize the labor dispute.

First, the union stationed a giant inflatable rat balloon on a flatbed trailer on public property in front of the hospital.  The rat balloon measured 16-feet tall and 12-feet wide and was located 100 feet from the hospital’s main entrance. Second, a union member stood near the hospital’s vehicle entrance for two days and held a leaflet in front of his chest. The leaflet described the non-union contractor as being a “rat employer” and asserted that the company was undermining the “wages, benefits, and other working conditions established by local labor agreements.”

The NLRB held that the rat balloon and the leaflet displays did not constitute “picketing” because there were no elements of confrontation in the union’s methods of protest. These displays were stationary and located at sufficient distances from the vehicle and building entrances such that visitors were not confronted by an actual or symbolic barrier as they entered or left the hospital. The NLRB further found that the rat balloon and the leaflet constituted “symbolic speech” and while it drew attention to the union’s labor dispute, it did not frighten or disturb hospital patients or otherwise disrupt the business of the health care institution.

The NLRB additionally held that neither the rat balloon display attendants nor the union member were unlawfully coercive in their conduct because these people did not move, shout, impede access or otherwise interfere with the hospital’s operations. Instead, their actions constituted expressive speech that was subject to constitutional protections.

Presentation:  “Update on Union Scare Tactics,” July 14, 2011, Denver, Colorado

Presentation:  Supervisor training, June 16, 2011

Bob Miller     

Presentation:  “Labor Law Update 2011:  Issues in Construction” to the Construction Personnel Executives Group in Charleston, South Carolina, May 13-14, 2011 

Presentation:  “Who is Responsible for Safety?” to the American Council of Engineering Companies of Colorado, Lakewood Colorado, May 4, 2011

Article:  “OSHA Crane Standard’s Application Reaches Beyond Employers of Crane Operators” for the June 2011 Job Done Right publication of the Colorado Association of Mechanical and Plumbing Contractors and the Mechanical Contractors Association

Kate Raabe

Presentation:  “Recognize and Prepare for Union Salting and Other Labor and Employment Issues,” Independent Electrical Contractors Contractor College, June 9, 2011

Presentation:  “Medical Marijuana at Work,” Hispanic Contractors of Colorado, April 20, 2011

Article:  “2011 Hot Topics in Labor and Employment Law” for the Spring 2011 issue of the Merit Builder published by the Rocky Mountain Chapter of the Associated Builders and Contractors

John Finn

Presentation:  “Fundamentals of Construction Contracts,” Lorman Education Services, September 22, 2011, Denver, Colorado

Sue Schaecher                       

Article:  "Government Agencies Target Construction Companies' Misclassification of Employees as Independent Contractors" published in the Fall 2011 Colorado Construction & Design

Article:  “Supreme Court Sets Standard for ‘Cat's Paw’ Liability,” published in the Spring 2011 Labor and Employment Law newsletter of the Labor and Employment Law Section of the American Bar Association

Presentation:  “Employment Practices - Making Critical Determinations,” Colorado Society of Association Executives’ Annual Convention, June 13, 2011, Colorado Springs, Colorado

Presentation:  “Employment Law,” Colorado Bar Association’s 20th Annual Institute on Advising Nonprofit Organizations in Colorado held April 28 - 29, 2011.

Article:  “Failure to Notify Employer of Repeat Harassment Fatal to Claim” published in the June 2011 HR Magazine published by the Society of Human Resource Management

Article:  “Discipline for Employee Use of Social Media Increasingly Challenged” published in the May 31, 2011 AGC Colorado eNews (Associated General Contractors of Colorado)