NLRB Alert: Expansion of Protections for Non-Union Employees

Transcription

1 NLRB Alert: Expansion of Protections for Non-Union Employees

2 Developments Poster and Regulations Mandatory Waivers of Class Action Arbitrations Work Rules Social Media Quickie Election Regulations Smaller Units 2

3 Notice of Rights Proposed rule would require nearly all U.S. employers to post a notice informing employees of their rights under Section 7 of the Act The notice concept was originally proposed to the Board in 1993 Adopted by the current Board and issued on August 30,

4 Notice of Rights Employers who fail to properly post the notice will be subject to liability for committing an unfair labor practice and may face tolling of the normal 6-month statute of limitations for filing an unfair labor practice charge May also result in a presumption that employer had anti union animus with regard to other violations 4 4

5 Notice of Rights EMPLOYEES HAVE THE RIGHT TO Organize a union Form, join or assist a union Collective bargaining Discuss wages and benefits and other terms and conditions of employment with co-workers Take action with one or more co-workers to improve working conditions Strike or picket Choose not to do any of these things EMPLOYERS MAY NOT Prohibit talking about a union during non-work time Question about union support Retaliate because of union sympathies or activities Threaten to close the workplace if a union comes in Make promises to encourage employees to refrain from choosing a union Prohibit the wearing of union paraphernalia except under special circumstances Spy on or videotape union activities or pretend to do so 5

6 Additional Posting Issues Employer must provide notice in other languages if non-english speaking employees in workplace Applicable once non-english form available Notice must be posted where other employmentrelated postings are placed Employers who post notices to employees on internet or intranet required to post notice in manner similar to other notices Posting Date: Nov. 14, 2011, delayed indefinitely 6

7 Additional Posting Issues Court Challenges DDC Upheld posting authority, but struck down ulp, anti-union animus, and tolling of S/L DSC No posting authority DC Cir. Injunction issued pending legal challenges Board Suspends Regulations 7

8 Mandatory Waiver of Class Actions Background Federal Arbitration Act Judicial Support for Arbitrations Concepcion Stolt-Nielsen CompuCredit 8

9 Mandatory Waiver of Class Actions Background Former GC Meisburg s Memorandum Case by case analysis Not Board s province to decide procedure for resolving Non-NLRA claims under other federal and state employment laws 9

10 Mandatory Waiver of Class Actions D. R. Horton Homebuilder required employees to arbitrate all employment claims and waive class actions Superintendents filed class arbitration that they were misclassified as exempt under FLSA Homebuilder claimed class arbitration waived and sought individual arbitrations of claims Superintendents filed ULP and claimed employer was interfering with NLRA Section 7 rights to act collectively for their mutual aid and protection 10

11 Mandatory Waiver of Class Actions D. R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) Chairman Pearce and Member Becker Mandatory agreements requiring individual arbitrations of employment disputes violate Section 7 rights to engage in concerted action for mutual aid and protection Employees cannot waive class actions GC Meisburg wrong FAA or Supreme Court do not require different result 11

12 Mandatory Waiver of Class Actions D. R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) Impact: Employer must permit a judicial or arbitral forum for class actions Board impliedly held superintendents not NLRA supervisors 12

13 Mandatory Waiver of Class Actions D. R. Horton, 357 NLRB No. 184 (Jan. 3, 2012) Decision cannot apply to supervisors Employer can require arbitration of individual claims 11 th Circuit and Supreme Court may reverse If Senate was in recess on date of decision, Becker was no longer a Board Member, Board had only two Members, and no decisions could be issued 13

14 Overbroad Rules on Misconduct NLRB claims work rules prohibiting misconduct such as incivility, rudeness, lack of respect, negative communication about employer or co-workers violate Section 7 Non-Union employers are being found in violation of NLRA At very least, disclaimer needed 14

15 Social Media American Medical Response of Connecticut Employee posted negative comments about supervisor on Facebook dick scumbag 17 (code for psych patient) Co-workers responded with support Employer fired employee Policy prohibited disparaging remarks Complaint issued; settled 15

16 Social Media WalMart Incident with new Assistant Manager Employee posts Wuck Falmart! I swear if this tyranny doesn t end in this store they are about to get a wakeup call because lots are about to quit. Co-workers responded with emotional support and to inquire what was wrong. One day suspension and ineligible for promotion No protected concerted activity; no group activity re terms and conditions 16

17 Small Bargaining Units Specialty Healthcare, 357 NLRB No. 83 Non-acute health care Union identifies an appropriate unit To add other positions, Employer must show an overwhelming community of interest 17

18 Quickie Election Rules Fast Track Elections Minimize pre-election hearing Eliminate pre-election Board review Preserve issues through challenges to ballots Resolve post-election issues only if necessary 18

19 Quickie Election Rules Board backed off of more radical proposals for now Two members rushed regulations through in waning days of Becker s term May have been adopted after Becker s term ended 19

20 Quickie Election Rules Member Hayes had no pre-adoption time in which to dissent Has now prepared dissent-not published Dissent and rebuttal will be published together Court challenges 20

21 The The Smith Madden Seat Seat Liebman Schaumber The Carmody Seat Mark G. Pearce (r) The Board The Murd ock Seat The Gray Seat Party in Control of the Board From To Craig Dem 3/27/10 6/21/10 Becker (r) Liebman Schaumber Pearce Brian Becker (r) Dem Hayes 6/22/10 8/27/10 Liebman Pearce Hayes Becker (r) Dem 8/28/10 8/27/11 Pearce Hayes Becker (r) Dem 8/28/11 1/3/12 Pearce Hayes Split (2M) 1/3/12 1/9/12 Richard Griffin (r) Terrence F. Flynn (r) Pearce Hayes Sharon Block (r) Dem 1/9/12 Present 21

22 Recess Appointments Second Session 112 th Senate Convened Jan. 3, 2012 Last Pro Forma Senate Session Dec. 30, 2011 D. R. Horton (no class action waiver) Jan. 3, 2012 First Session 112 th Senate Adjournment Dec. 17, 2011 Election Regulations Dec. 21, Decisions 22

23 WHAT DOES ALL THIS MEAN FOR EMPLOYERS? 23

24 MOST PETITIONS FILED BY UNION SEIU IBT NNU UFCW OPEIU NEMSA IUJAT AFSCME OTHER 24

25 WHY EMPLOYEES ORGANIZE Pay Benefits Leadership Workload Job Security Voice Safety Dignity Respect 25

26 SHRC ASSESSMENT RESULTS Top Five Issues Primary Areas of Vulnerability AOVs 26

27 HOW EMPLOYEES ORGANIZE Internal organizers Often employees subject to discipline Victim mentality Ideological reasons External organizers Salesmen CIA agents Psychologists YOUR COMPANY LOGO HERE 27

28 HOW EMPLOYEES ORGANIZE Social media Whispering groups among employees New leaders emerging New friendships emerging Arguments and discord Employee meetings Scripted policy questions Morale problems Suspicious visitors Charges and complaints Salts Home visits 28

29 TOP TEN WAYS TO WELCOME A UNION INTO YOUR BUSINESS 1. Inconsistent treatment 2. Lack of communication 3. Lack of objectivity (favoritism or grudges) 4. Employer doesn t follow its own policies 5. No notice of expectations or deficiencies 29

30 TOP TEN WAYS TO WELCOME A UNION INTO YOUR BUSINESS 6. Hypocrisy and misrepresentations 7. No or inadequate investigation of facts 8. Lack of responsiveness to concerns 9. Consequences imposed in cold or cruel way 10. Be a monarch BONUS: IGNORE BAD BEHAVIOR IN YOUR LEADERS 30

31 UNION AVOIDANCE TIPS KEY: EARLY WARNING SYSTEMS ARE CRITICAL 1. Educate 2. Prevent 3. Assess 4. Establish trip wires 5. SWAT team approach/response protocols 31

32 Union Organizing Thank You! 32