2004-24

NLRB Overturns Union Election Win, Finding Altered Sample Ballot Misled Voters

In a 2-1 decision, the Board in French Redwood Inc. d/b/a Sofitel San Francisco Bay, 343 NLRB No. 82 (2004), overturned a union election victory.1 The Board majority found that the union, through the distribution of an altered sample election ballot, misled voter employees into believing that the NLRB favored the union in the election. The Board invalidated the previous election and order that a new election must take place.

This case involved a 2004 election where housekeeping workers at Sofitel San Francisco Bay voted as to whether they wanted to be represented by SEIU Local 265. A week before the election, about nine employees were mailed a Spanish language sample ballot. The union denied sending the mailing. The sample ballot had a large handwritten "X" in the yes box, each recipient’s name was handwritten on the ballot and there was a handwritten message at the bottom in Spanish (either "Yes it can be done" or "Please - It can be yes if you can"). [See attachment A-20 for photograph of the sample ballot] The union won 27-24.

The Board noted that sample ballots are acceptable if the source is "clearly identified" on its face. If the source is not clearly identified, the Board will review such documents on a case by case basis. Extrinsic evidence such as circumstances of the distribution of the document can be considered. Here, the Board found that the source was not clearly identified on the sample ballot. The Board also found that the fact that the union’s return address on the envelope "did not establish that the Board did not prepare it, because distribution by a party, without more, does not establish the source of the document."

The dissent found that the sample ballot with the handwritten language was "obviously campaign propaganda." Member Walsh stated that it was unreasonable that an employee receiving such an altered ballot would believe that the NLRB was suddenly "jumping in the contest and imploring the employees" to vote for the union.

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NLRB Declines to Infer Section 7 Violations From Facially Neutral Work Rules.

The National Labor Relations Board, in a 3-2 decision concluded that the maintenance of work rules prohibiting "abusive and profane language," "verbal, mental and physical abuse," and "harassment…in any way" could not reasonably be understood as interfering with employees’ Section 7 rights under the National Labor Relations Act. Lutheran Heritage Village-Livonia, 343 NLRB No. 75 (2004).

The decision, dated November 19, 2004 adopts the reasoning of the District of Columbia Circuit in Adtranz, ABB Daimler-Benz Transportation, N.A., Inc. v. NLRB, 253 F.3d 19 (D.C. Cir. 2001). In Adtranz, the District of Columbia Circuit concluded that a rule prohibiting abusive or threatening language was lawful because it was based on the employer’s legitimate right to establish a "civil and decent" workplace and to protect itself from liability for workplace harassment by maintaining rules prohibiting conduct that could lead to liability. Adopting the court’s view, the Board majority in Lutheran Heritage Village-Livonia agreed that a rule prohibiting "abusive and profane language," as well as rules prohibiting "verbal . . . abuse" and "harassment," were lawful.

If an employer issues a rule that explicitly restricts activities protected by Section 7, the Board will find that rule to be unlawful. However, if the activities are not explicitly restricted, to show that a violation has occurred, one of the following must be present: "(1) employees would reasonably construe the language (of the rule) to prohibit Section 7 activity; (2) the rule was promulgated in response to union activity; or (3) the rule has been applied to restrict the exercise of Section 7 rights."

The majority in Lutheran Heritage Village-Livonia recognized that maintenance of a rule that does not expressly prohibit protected activity "can nonetheless be unlawful if employees would reasonably read it to prohibit Section 7 activity." However, the Board said that employees here would not reasonably read the rule in that way. "That is, reasonable employees would infer that the (employer’s) purpose in promulgating the challenged rules was to ensure a ‘civil and decent’ workplace, not to restrict Section 7 activity." The majority also stated that where, as in this case, the rule does not refer to Section 7 activity, was not adopted in response to organizational activity, and had never been enforced to restrict Section 7 activity, "we will not conclude that a reasonable employee would read the rule to apply to such activity simply because the rule could be interpreted that way." In addition, in response to the dissent, the Board noted that the "mere maintenance of the rules (as) lawful, does not ... immunize from challenge (of) specific instances in which they are applied."

In dissent, Members Liebman and Walsh observed that "the ill-defined scope of the Respondent’s ‘verbal abuse’ and abusive language" rules, as well as its "no harassment" rule, would reasonably tend to cause employees to "steer clear of the prohibited zone" and refrain from voicing disagreement with their terms and conditions of employment or vigorously attempting to organize skeptical workers. The dissent explained that it relied "not only on the fact that the overbroad rules at issue here could reach activity that is protected, but also on the particular language of the rules, the Respondent’s maintenance of other facially unlawful rules, and the existence of seemingly duplicative rules as providing a context in which employees would reasonably construe the rules as interfering with their Section 7 activity."

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Police officer who was terminated for selling sexually explicit videos of himself was not commenting on an issue of "public concern" and was not taking part in speech protected by the First Amendment.

The United States Supreme Court, in a per curiam decision on a petition for writ of ceriorari, in City of San Diego v. John Roe, 2004 DJDAR 14395 (decided December 6, 2004) reversed the Ninth Circuit, in finding the City of San Diego was justified in terminating the plaintiff police officer for selling explicit videos as the plaintiff’s conduct was not speech protected by the First Amendment.

The plaintiff was a police officer for the city of San Diego. He made and sold on ebay, sexually explicit videos of himself wearing a police uniform. Under the same username that the plaintiff used to sell these videos - "codestud3@aol.com" (a word play on a high priority police radio call) - the plaintiff also sold police equipment and identified himself as being in the field of "law enforcement." The plaintiff’s supervisor became aware of what the plaintiff was doing and ordered him to stop. When the plaintiff continued to sell the videos, he was fired. The U.S. District Court granted the City’s summary judgment, but the Ninth Circuit reversed.

Relying on Pickering v. Board of Ed., 391 U.S. 563 (1968) and United States v. National Treasury Employees Union, 513 U.S. 454 (1995), the Supreme Court stated that while government employees do not relinquish their First Amendment rights just because they work for the government, a governmental employer may impose certain restraints on the speech of its employees that would be unconstitutional if applied to the general public.

The threshold inquiry is whether the speech touches on a matter of "public concern." If it does, then the balancing test adopted by the Court in Pickering must be applied. Here, the Supreme Court found with "no difficulty" that the speech was not a matter of public concern and therefore, no balancing was necessary. The Court noted that the plaintiff’s "activities did nothing to inform the public about any aspect of the (San Diego Police Dept.)’s functioning or operation ... (the plaintiff’s) expression was widely broadcast, linked to his official status as a police officer, and designed to exploit his employer’s image."

The Supreme Court rejected the Ninth Circuit’s finding that the plaintiff’s activities were "unrelated" to his employment. The Supreme Court noted that the defendant "demonstrated legitimate and substantial interests of its own that were compromised by (the plaintiff’s) speech." The plaintiff "took deliberate steps to link his videos and other wares to his police work, all in a way injurious to his employer. The use of the uniform, the law enforcement reference in the Web site, the listing of the speaker as "in the field of law enforcement," and the debased parody of an officer performing indecent acts while in the course of official duties brought the mission of the employer and the professionalism of its officers into serious disrepute."

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