Understanding the NLRB s New Agenda and How It Affects Non Union Employers. Steve Schuster, Esq.

Transcription

1 Understanding the NLRB s New Agenda and How It Affects Non Union Employers Steve Schuster, Esq.

2 This session is being recorded. You will receive a link to the recording after the webinar. We will provide the HRCI code at the end of the webinar. Questions will be answered within 72 hours.

3 NLRB - Update Report of the General Counsel on NLRB Case Developments Related to Rules Cases A Warning to All Non-Union Employers

4 Rules Case Update On March 18, 2015, the top lawyer for the National Labor Relations Board (NLRB), Richard Griffin, Jr., Issued a Report Intended to Provide Guidance to Employers on Recent Case Developments on the Board s View of the Legality (or Illegality) of Various Employer Handbook Rules

5 It All Starts With the Need to Understand What Are Employee Rights Under Section 7 of the National Labor Relations Act (NLRA)

6 So Just What is Section 7 Activity? Section 7 of the National Labor Relations Act (NLRA) provides that: (i) Employees have the right to form, join or assist a labor organization in other words engage in union activity (ii) Employees can also join together for the purposes of mutual aid and protection otherwise known as protected concerted activity (PCA) It is the second category PCA that causes the non union employer headaches because union activity doesn t even have to be present for PCA to occur.

7 It All Starts With Section 7 Rights For the last 10 years the standard for such cases has been established by Lutheran Heritage Village-Livonia (343 NLRB 646 (2004) The basic analysis has been whether an Employer s policies, procedures or work rules have a chilling effect on an employee s right to engage in conduct that is protected ( PCA ) under Section 7 of the NLRA

8 Rules Cases Update According to the Lutheran Heritage Village- Livonia decision, there are two ways that a policy or work rule would violate the NLRA: 1. The rule on its face violates the Act by explicitly restricting protected concerted activity (PCA), or 2. Even if the Rule doesn t explicitly restrict PCA, the Rule would still be unlawful if:

9 Rules Case Update (i) Employees would reasonably construe the language of the rule to prohibit Section 7 activity; or (ii) The rule was promulgated (adopted) in response to union or other Section 7 activity; or (iii) The rule was actually applied in a manner to restrict the exercise of Section 7 rights

10 GC Report 8 Different Types of Rules Discussed 1. Rules Related to Confidentiality Issues 2. Employee Conduct Directed at the Company or Supervisors 3. Employee Conduct Directed Towards Co-Workers 4. Employee Interaction With Third Parties

11 Rules Case Update 5. Rules Restricting Use of Company Logos, Copyrights, and Trademarks 6. Rules Restricting Photography and Recording in the Workplace 7. Rules Relating to, or Restricting Employees From Leaving Work 8. Conflict-of-Interest Rules

12 Rule Type 1 Rules Related to Confidentiality Issues In general, employees have the right to discuss their wages, hours and other terms and conditions of employment Therefore, an Employer s policy or work rules cannot: (i) specifically restrict or prohibit such discussions, or (ii) be written in a way that employees would reasonably understand the rule to prohibit such discussions

13 Rules Related to Confidentiality Issues In other words, an Employer s confidentiality rule cannot be written in a way that prohibits the discussion of employee or personnel information Ex. Flamingo-Hilton Laughlin, 330 NLRB 287 (1999) (policy required that employees not reveal confidential information regarding customers, fellow employees, or hotel business unlawful) Ex. Flex Frac Logistics, L.L.C., 358 NLRB No. 127 (2012), enf d, F.3d (5 th Cir. 2014) (policy prohibited disclosure of financial information including costs and personnel information unlawful) Any policy or rule that prohibits the discussion of wages, benefits or other terms and condition of employment.is unlawful

14 Rules Related to Confidentiality Issues Muse School Case Study Director James Cameron (of Titanic and Avatar fame) started a private school geared towards children of celebrities and wealthy families in Southern California. In order to protect the identity and the confidentiality of the school s children (and families), the Muse School required all employees to enter into strict Confidentiality/Non-Disclosure agreements. When the Muse School tried to enforce such an agreement against a former teacher at the school who was complaining about the low wages and bad working conditions at the school, the former teacher filed a Charge with the NLRB. NLRB determined the Confidentiality/Non-Disclosure agreement was unlawful (too broad), and the school s attempt to enforce it was unlawful as well.

15 Rules Related to Confidentiality Issues The key for a rule of this type is to properly distinguish between an Employer s substantial and legitimate interest in protecting the privacy of certain business information The rule must be written in a way that avoids a conclusion by the Board that it is overbroad or ambiguous in a way that the reasonable employee would interpret the rule to preclude Section 7 activity

16 Rule Type 2 Employee Conduct Directed at the Company or Supervisors The NLRB says that employees have the right to criticize or protest against their employer or the employer s treatment of employees Thus, a rule cannot generally prohibit employees from being: - disrespectful - negative - inappropriate - rude

17 Employee Conduct Directed at the Company or Supervisors Unless there is sufficient clarification or context: See Casino San Pablo, 361 NLRB No. 148 (2014) (rules prohibited false, fraudulent, or malicious statements and insubordination and other disrespectful conduct unlawful) See Southern Maryland Hospital Center, 293 NLRB 1029 (1989), enf d, 916 F.2d 932 (4 th Cir, 1990) ( policy prohibiting derogatory attacks on fellow employees, or hospital representatives unlawful)

18 Rule Type 3 Employee Conduct Directed Towards Co-Workers NLRB says employee discussions, arguments, debates about unions and their working conditions are often contentious Supreme Court even acknowledged that such conversations between employees frequently become intemperate and even abusive - See Linn v. United Plant Guard Workers, 383 U.S. 53 (1966)

19 Employee Conduct Directed Towards Co-Workers The NLRB says any employer policy or work rule that bans negative or inappropriate discussions between employees is unlawful because such a rule interferes with Section 7 rights - See Hills & Dales General Hospital, 360 NLRB No. 70 (2014) - Policy requiring that employees will not make negative comments about fellow team members, and will not engage or listen to negativity, and will represent the employer in the community in a positive and professional manner Found unlawful. - See Claremont Resort & Spa, 344 NLRB 832 (2005) - Rule prohibiting negative conversations about associates or managers Found unlawful.

20 Employee Conduct Directed Towards Co-Workers Examples of unlawful policy language: Don t pick fights on-line Do not make insulting, embarrassing, hurtful or abusive comments about the Company or your co-workers on-line Do not send unwanted, offensive or inappropriate s. Material that is.. intimidating.may not be sent by .. All of the rules listed above were found by the Board to be unlawful because they were deemed as being too vague, overbroad or ambiguous An employee may reasonably read such rule as to prohibit them from engaging in activity covered by Section 7 of the NLRA Triple Play Sports Bar & Grill, 361 NLRB No. 31 (2014) (internet/blogging policy cautioning employees from engaging in inappropriate discussions about the company, management, and co-workers unlawful)

21 Employee Conduct Directed Towards Co-Workers Lafayette Park Hotel, 326 NLRB 824 (1998), enf d, 203 F.3d 52 (D.DC 1999) - Rule prohibiting employees from making false, vicious, profane, or malicious statements toward the company, the employer or any employees Found unlawful. 2 Sisters Food Group, 357 NLRB No. 168 (2011) - Rule requiring employees to work harmoniously with other employees Found unlawful. HTH Corp., 356 NLRB No. 182 (2011), enf d, 693 F.3d 1051 (9 th Cir. 2012) - Rule prohibiting derogatory statements about employees, supervisors, or employer Found unlawful.

22 Rule Type 4 Employee Interaction With 3 rd Parties Under Section 7, employees have the right to communicate with the news media, government agencies and other third parties about their wages and working conditions Handbook rules that restrict such behavior are therefore unlawful Most common offenders in this area are employers who have media policies (social or otherwise)

23 Employee Interaction With 3 rd Parties Examples of unlawful policy language: Employees are not authorized to speak to any news agency about company matters Employees are not permitted to speak to a news reporter about Company business Employees are not permitted to speak to any news agency about the Company without first receiving permission to do so All of the policies listed above are considered to interfere with employee conduct permitted under Section 7 of the NLRA

24 Employee Interaction With 3 rd Parties Trump Marina Associates, 354 NLRB 1027 (2009), adopted, 355 NLRB 585 (2010), enf d, 435 F. Appx. (DC Cir. 2011) - Rule prohibited releasing statements to the news media without prior authorization Found unlawful. Crown Plaza Hotel, 352 NLRB 382 (2008) - Rule prohibiting employees from talking to the press Found unlawful. HTH Corp., 356 NLRB No. 182 (2011), enf d, 693 F.3d 1051 (9 th Cir. 2012) - Rule prohibiting employees from sharing information with the media Found unlawful.

25 Rule Type 5 Rules Restricting Use of Company Logos, Copyrights, and Trademarks Even though the NLRB recognizes that copyright holders have a clear interest in protecting intellectual property, a workplace policy or rule cannot prohibit an employee from the fair and protected use of that property For instance, a company s name or logo is usually something that is protected by intellectual property laws, but employees have a right to use that name or logo or other trademark on signs, leaflets and other protest material when working conditions are the subject of the so-called protest - See - Pepsi-Cola Bottling Co., 301 NLRB 1008, enf d, 953 F.2d 638 (4 th Cir. 1992) - Rule prohibiting wearing company uniforms during union activity Found unlawful. - See - Spirit Construction Service, 351 NLRB 1042 (2007) Rule requiring removal of company logo sticker from hardhat during protected activity Found unlawful.

26 Rules Restricting Use of Company Logos, Copyrights, and Trademarks Examples: Do not use any Company logo, trademark, graphic or other Company material when posting on-line Do not use other people s property such as trademarks or logos, without permission Use of the Company s name, address or other information is banned. This includes logos, trademarks or other copyrighted material The NLRB would view such policies or work rules as being overbroad or too vague See Kroger Co., 1999 LRRM 1319 (Div. of Judges, 2014) (online communications policy prohibited use without permission of company intellectual property assets (like copyrights, trademarks, patents, or trade-secrets including Kroger or banner logos) unlawful)

27 Rule Type 6 Rules Restricting Photography and Recording in the Workplace NLRB says that employees have the right to photograph or make recordings in furtherance of conduct protected by Section 7 See White Oak Manor, 353 NLRB 795, adopted, 355 NLRB 1280 (2010), enf d, 452 F. Appx. 374 (4 th Cir. 2011) (photographing which is part of res gestae of concerted activity is protected) Rules placing a total ban on such activity are unlawful to the extent that a reasonable employee would read and interpret such a rule in a way that limits their rights under the NLRA If the rule places reasonable limits on such activity, in a way that the employer is protecting legitimate confidential or proprietary information, then such a policy would be lawful See Hawaii Tribune-Herald, 356 NLRB No. 63 (2011), enf d, 677 F.3d D.C. Cir. 2012) (rule prohibiting employees from secretly recording conversations, that was promulgated in response to union organizing unlawful)

28 Rules Restricting Photography and Recording in the Workplace Boeing Case Study A seemingly valid No Photograph/No Video policy didn t hold up when the facts came out: Policy required approval of the Company s security department before photos/video could be taken Employees who photographed/videoed a union demonstration in the plant were found in violation of the policy Facts developed during NLRB hearing revealed that members of the general public were allowed to take photos/video during public tours of the plant

29 Rules Restricting Photography and Recording in the Workplace Bottom Line: Employer must have a strong legal basis or business reason for a ban on photos/videos to outweigh Section 7 rights. Rule that prohibits photos/videos from being taken in work areas containing trade secrets or other proprietary information is permitted.

30 Rule Type 7 Rules Relating to, or Restricting Employees From Leaving Work NLRB says employees (both union and non-union) have the right to engage in a strike If a policy or work rule regulates when employees can leave work in a way that would preclude or interfere with the right to strike, then such a rule would be unlawful If however, the rule does not specifically preclude strikes, walkouts, work disruptions or walking off the job, then the rule will be unlawful

31 Rules Relating to, or Restricting Employees From Leaving Work Compare Purple Communications, Inc., 361 NLRB No. 43 (2014) (rule prohibiting employees from causing, creating, or participating in a disruption of any kind during working hours on company property unlawful) and Labor Ready, Inc., 331 NLRB 1656 (2000) (rule stating that employees who walk off the job will be discharged unlawful) with 2 Sisters Food Group, 357 NLRB No. 168 (2011) rule prohibiting leaving plant during a work shift without a supervisor s approval lawful)

32 Rule Type 8 Conflict-of-Interest Rules Under the NLRA, Employees have the right to protest, organize, boycott, and otherwise generally complain about their employer if such activity is related to wages or working conditions Thus, an employer s policies or work rules cannot be written in a way that would interfere with this protected activity

33 Conflict-of-Interest Rules Examples: Employees may not engage in any action that is not in the best interest of the Company Employees shall not engage in any protest that may reflect poorly on the Company Employees should not do anything that might damage or harm the reputation the Company The examples above were considered to be too vague or overlybroad in a way that an employee may reasonably read such rule as to limit their right to engage in protected activity See HTH Corp., 356 NLRB No. 182 (2011), enf d, 693 F.3d 1051 (9 th Cir. 2012) - Conflict of interest policy informing employees that discouraging potential or actual customers will be considered a serious act of disloyalty Found unlawful.

34 Your Employee Handbook is Probably Unlawful -So What Can Employer Do? First step is to have your Employee Handbook or written work rules reviewed and revised (if necessary) by experienced legal counsel, in order to comply with the NLRB s view of the workplace. Avoid policy or work rule language that is vague or too broad. Make sure policies and work rules are specific enough that the reasonable employee could not read or interpret the rules in a way that interferes with or chill Section 7 rights.