An About Face: The NLRB Change in Direction with Respect to Employment Policies and Work Rules

Transcription

1 An Abot Face: The NLRB Change in Direction with Respect to Employment Policies and Work Rles M. Christopher Moon Jackson Lewis PC Salt Lake City (801) Jackson Lewis P.C.

2 Key Topics Addressed The National Labor Relations Board Backgrond on Unions Boeing Signals a Retrn to Common Sense Social Media Policies Workplace Rles in Action! Other Policies and Work Rles Qestions 2

3 National Labor Relations Board Federal agency created by the National Labor Relations Act Has exclsive jrisdiction over private sector labor relations Processes election petitions and resolves nfair labor practice (ULP) charges HQ in D.C. with 26 regional offices across the contry, each headed by a Regional Director Five members; appointed by the President with advice of the Senate. Usally, three are generally members of the President s party; two are members of the opposition party NLRB prosector is its General Consel, appointed by the President with advice of Senate. It is a key position. 3

4 The New General Consel RICHARD GRIFFIN, JR. Term expired November 3, 2017 One of NLRB s recess appointees sccessflly challenged nder Spreme Cort s holding in Noel Canning Former General Consel for International Union of Operating Engineers. Served on the Board of Directors for the AFL-CIO Lawyers Coordinating Committee. Clearly and openly pro-nion PETER ROBB Nominated September 18, 2017 Confirmed on November 8, 2017 (49-46) Management-side labor attorney from Vermont Expected rollback of Obama-era decisions in recent years 4

5 NLRB Members Marvin Kaplan (R) Chairman term ends 8/27/20 William Emanel (R) Member term ends 8/27/21 John Ring (R) Nominated Fll Senate Vote April 9 Mark Gaston Pearce (D) Member term ends 8/27/18 Laren McFerran (D) Member term ends 12/16/19 5

6 Unions 2018 Private Sector % 27% 6.4% 65% 73% 93.6% Union Non-Union 6

7 Unions Million U.S. workers are in a nion Since 2008 nions have lost over 1.5 Million members Down from 17.7 Million workers in 2008 Down 240,000 in 2016 Approximately half of all nion members live in 7 states California, New York, Illinois, Pennsylvania, Michigan, New Jersey and Ohio. Bt REMEMBER, the NLRB covers most private employers, regardless of whether the company is nionized. 7

8 8 What Does this Mean for Employers?

9 A Srge In Pro-Bsiness Decisions? Probably, Bt MANY UNION MEMBERS VOTED FOR TRUMP, ESPECIALLY IN KEY STATES. SOME UNIONS TALK ABOUT EMPOWERMENT. Three days into the new Administration, Trmp invited labor leaders to the White Hose It was a good sbstantial meeting abot good middle class jobs. - Terry O Sllivan, Laborers Union He s the first president to (address NAFTA) and I m going to give him KUDOS for that. - Dennis Williams, UAW Trmp has worked fairly well with nions, mostly in the constrction indstry, for most of his career The last eight years notwithstanding, the Board generally moves slowly 9

10 NLRB Overtrns Obama-Era Cases New Board Decisions Isses on Horizon? Micro Units Class waivers Workplace Policies & Rles Qickie election rles Changes in Health Care plan Employee handbook rles Joint Employer Standard (decision since vacated) ALJ settlement athority Use of Company Des-checkoff provision following expiration of CBA Weingarten rights in drg testing context Off-dty access to plant Gradate stdents / athletes 10 Sorce: NLRB and General Consel Memo

11 Protected Concerted Activity Section 7 of the National Labor Relations Act states: Employees shall have the right to self-organization, to form, join or assist labor organizations, to bargain collectively throgh representatives of their own choosing, and to engage in other concerted activities for the prpose of collective bargaining or other mtal aid or protection. (emphasis added). This sally means two or more employees acting together, bt it can be a single employee if he is acting on behalf of others. At a most basic level, employees can act together to try to improve wages, hors, and other conditions of employment, with or withot a nion. 11

12 Work Rles - Old Law Board issed Ltheran Heritage decision in (2004) Held that workplace policies or rles that employees cold reasonably constre to prohibit Section 7 activity are nlawfl Decision sed as basis to strike down varios work rles, sch as: Confidentiality rles Condct toward spervisors Condct toward employees Commnication with otside parties Use of Company logos, copyrights and trademarks Photography and recording 12 Sorce: NLRB

13 The Boeing Co.: A Retrn to Common Sense! In The Boeing Co., 365 NLRB No. 154 (Dec. 14, 2017), the Board, overtrned Ltheran Heritage, holding that when evalating facially netral employer policies, the Board wold apply a balancing test, assessing the natre and extent of the [rle s] potential impact on NLRA rights against the legitimate jstifications associated with the rle. Applying its new test, the Board held the Employer s no-camera rle did not violate the Act. While the Board acknowledged the rle cold impact employees Section 7 rights, it fond the impact did not otweigh the Employer s interest in maintaining secrecy arond its prodcts, secrecy imposed in part by federal rles applicable to the Employer as a federal contractor. 13

14 Work Rles New Test Board creates a two-part analysis evalating (a) the natre and extent of the rle on NLRA rights, and (b) legitimate jstifications associated with the new rle. Work Rles: Three Categories Category 1: rles that the Board designates as lawfl to maintain, either becase (i) the rle, when reasonably interpreted, does not prohibit or interfere with the exercise of NLRA right; or (ii) the potential adverse impact on protected rights is otweighed by jstification associated with the rle. Category 2: rles that warrant individalized scrtiny in each case as to whether the rle wold prohibit or interfere with NLRA rights, and if so, whether any adverse impact on NLRAprotected condct is otweighed by legitimate jstifications. Category 3: rles that the Board will designate as nlawfl to maintain becase they wold prohibit or limit the NLRA-protected condct and the adverse impact on NLRA rights is not otweighed by jstifications associated with the rle. 14

15 What Type of Rles are in each Category? Category 1 No camera rles Harmonios interactions and relationships rles Rles reqiring employees to abide by basic standards of decency Category 2 Good qestion! No examples given. Category 3 Rles that wold prohibit wage and benefit discssion 15

16 Main Takeaway of Boeing Boeing greatly increases the right of employers to implement jstified, facially netral rles which can be read to interfere with Section 7 rights only throgh a tortred reading. Consider a Fll Review of Policies and Procedres Some previosly nlawfl rles nder the Obama Board s expansive reading of Section 7 are likely to be fond lawfl. Those rles can be reinserted into yor handbooks and policies. 16

17 The NLRB & Social Media Policy Overbroad social media policies contine to be deemed to violate Section 8(a) becase they can frstrate Section 7 activity 17

18 Social Media Policies An Administrative Law Jdge considered and applied recent NLRB precedent to social media policies in Nat. Captioning Institte, Inc., Nos. 16-CA , et al. (Sept. 18, 2017): If yo opt to post abot yor job on social media, it mst be done responsibly... [here are]... or gidelines.... Do not post abot [or] software. A lot of or software... was invented by [s].... Don't post screenshots of or software... and do not refer to any of or software by name. Avoid anything other than vage descriptions Do not identify clients by name.... Don t post sbjective commentary that cold reflect poorly pon [the Company s] professionalism or reptation 3. Refrain from commenting on the qality of other captioning. (Cont.) 18

19 Social Media Policies 4. Don't se the [Company s] name on any posts that are Google-searchable Posts... are Googleable.... It is fine to list yor job title and employer name on yor social media profiles 5. Yo are NOT anonymos on the internet. Online harassment... [that does not] reflect well pon the Company [is prohibited].... (Cont.) 19

20 Social Media Policies The ALJ fond the social media policy violated the Act, becase: 1) the Board has fond that analogos social media policies nlawflly limited employees right to criticize the employer; 2) the policy nlawflly bans sage of the Employer s name in Section 7-protected posts abot terms and conditions of work; 3) it is nlawflly vage by prohibiting online harassment [that does not] reflect well withot defining the key terms in that phrase; and 4) it bans software postings withot leaving an exception for matters toching on collective concerns 20

21 Social Media Policy Tips Tips for Drafting a Lawfl Policy DON T se general or vage langage: Anything that an employee posts on-line that can potentially tarnish the Company s image is prohibited. Employees are prohibited from taking pblic positions on-line that are conter to the Company s interest. 21

22 Social Media Policy Tips Tips for Drafting a Lawfl Policy DO provide specific examples of nacceptable condct: Employees shold not post items that cold be viewed as malicios, obscene, threatening or intimidating or contribte to a hostile work environment on the basis of any stats protected by law or company policy. 22

23 Workplace Rles in Action! Employee posted the following comment abot his manager on his Facebook page: Bob is sch a NASTY MOTHERFU**ER don't know how to talk to people!!!!!! F*ck his mother and his entire f*king family!!!! What a LOSER!!!! Vote YES for the UNION!!!!!!! The post was visible to the employee s Facebook friends, which inclded some coworkers, and to others who visited the Facebook page. The Employer learned abot the post and terminated the employee. Can yo fire that gy? 23

24 Workplace Rles in Action! Probably Not? NLRB fond in 2014 that the company had nlawflly fired the employee, in part de to evidence that obscenities were common in the workplace. I always told people that the Board had overreached and that the decision was nlikely to srvive an appeal, bt The decision was affirmed by the Second Circit Cort of Appeals in April

25 More Workplace Rles in Action! An employee, a hotel server and member of the nion s organizing committee, lead a delegation of 20 individals into a secre, non-pblic area of the hotel to deliver a petition abot workplace conditions to the hotel s general manager. The employee lied to a secrity officer and sed an employee-only passcode in order for the grop to gain access to the secred area. Can yo fire that gy? Yes! The Board held that the employee lost the protection of the Act when he improperly accessed a secre area of the employer s hotel, even thogh he did so in order to engage in otherwise protected concerted activity. KHRG Employer, LLC, 366 NLRB No. 22 (Feb. 28, 2018). Althogh delivering the petition was nqestionably protected activity, the Board held the employee s condct in improperly accessing the secred area, inclding throgh lying to the secrity officer, was so egregios that his condct nonetheless fell otside the NLRA s protections. 25

26 Rles Prohibiting Attacks on Employers Prodcts and Reptation In Miklin Enterprises, Inc. d/b/a Jimmy John's, Case Nos , No (8th Cir. Jl. 3, 2017), the U. S. Cort of Appeals for the Eighth Circit, reversing a Board decision and the Circit Cort s panel decision, held the Employer did not violate the act when it fired employees for placing posters in the city where the Employer did bsiness that implied the Employer s sandwiches posed a health risk to cstomers A Minneapolis Jimmy John s sandwich shop s sick-leave policy reqired employees calling in sick to find a replacement worker to cover the sick employee s shift Six employees plastered Minneapolis with the posters, which sggested the policy wold lead employees to go to work sick, thereby contaminating sandwiches. (Cont.) 26

27 Rles Prohibiting Attacks on Employers Prodcts and Reptation The Union organizing the workers filed ULP charges after the Employer fired the employees who led the poster campaign The Board fond the firings were nlawfl, becase they were in response to protected concerted activity, and a three-jdge panel of the Circit Cort affirmed Reversing the panel, the Circit Cort sitting en banc held the Act does not protect sch calclated, devastating attacks pon an employer s reptation and prodcts. The poster campaign, the Circit Cort held, demonstrated sch detrimental disloyalty as to provide case for the terminations (Cont.) 27

28 Positive Workplace Policies The Fifth Circit Cort of Appeals considered the Board s approach to several categories of workplace rles this smmer in T-Mobile USA, Inc. v. NLRB, Case No (5th Cir. Jl. 25, 2017): (1) A positive work environment policy: [The Employer] expects all employees to behave in a professional manner that promotes efficiency, prodctivity, and cooperation. Employees are expected to maintain a positive work environment by commnicating in a manner that is condcive to effective working relationships with internal and external cstomers, clients, co-workers, and management NLRB Illegal Cort Legal 28

29 Integrity Policies (2) An integrity policy: [W]e expect all employees, officers and directors to exercise integrity, common sense, good jdgment, and to act in a professional manner. We do not tolerate inconsistent condct. While we cannot anticipate every sitation that might arise or list all possible violations, the acts listed below are nacceptable Arging or fighting with coworkers, sbordinates or spervisors; failing to treat others with respect; or failing to demonstrate appropriate teamwork NLRB Illegal Circit Cort Legal 29

30 Policies Banning Insignias The Eleventh Circit considered the Board s approach to workplace bans on bttons and other insignia in G4S Secre Soltions (USA), Inc., (11th Cir. Sept. 1, 2017): The Employer s handbook rle stated that [n]o insignias, emblems, bttons, or items other than those issed by the company may be worn on the niform withot expressed permission The Union filed ULP charges alleging the handbook rle violated the Act The Circit Cort, affirming the Board s decision, held the rle cold be reasonably constred as prohibiting employees from wearing nion insignia while off dty, which the Circit Cort held the Employer had no legitimate basis for doing. 30

31 Policies Governing Confidential Information Macy s, Inc., 365 NLRB No. 116 (Ag. 14, 2017). The Employer s handbook policy prohibited employees from disseminating to the pblic confidential and personallyidentifiable information abot cstomers, inclding social secrity nmbers and home and office contact information: Balancing the Employer s confidentiality rights against Section 7 rights, the Board held the Employer s rle was lawfl, becase it narrowly defined the confidential information as inclding sensitive information (like social secrity nmbers) that is not generally available and cold harm the cstomers if disclosed The Board held that while employees do have the right to contact employees nder Section 7 and to disclose cstomer information, they do not have the right to access or disclose sensitive information as prohibited by the policy 31

32 Don t Make Confidentiality Rles Overbroad Too Broad Employees may not discss wages with co-workers. Office bsiness is not a matter of discssion with sposes, families or friends. Employees may not discss confidential proprietary information with competitors. Lawfl Employees may not divlge proprietary information sch as sales reports, costs for goods, marketing strategy 32

33 Confidentiality of Investigations Employer s form directed all interviewees that [t]his is a confidential interview[,] the Employer will keep [the] conversation confidential, and instrcting the interviewee not to discss this with yor coworkers while this investigation is going on, for this reason, when people are talking it is difficlt to do a fair investigation and separate facts from rmors. Board fond in 2015 that this blanket policy was too broad, becase workplace investigation can have the potential to impact terms of employment. What wold be the reslt today? 33

34 Labor Law Changes A Jackson Lewis Poem set to the tne of Phil Ochs Changes. Remember having to revise policies and rles in employee handbooks? The new Board majority made clear it was giving Obama Board rlings frther looks. The new Board said to balance management s needs and prposes in its sights Rather than looking solely at theoretical effects of netral rles on Section 7 rights. Be respectfl in condct, ct profanity, or make civility yor rle Became fine in a handbook or Facebook, Twitter or other social media tools. No longer do employers have to accept inappropriate condct No longer do they have to apply a vage protected Section 7 constrct. 34

35 35 QUESTIONS?

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