Justin F. Keith Paul J. Murphy. October 3, 2013 G R E E N B E R G T R A U R I G, L L P A T T O R N E Y S A T L A W W W W. G T L A W.

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1 Hot Topics in Labor Law: How will the NLRB Change the Landscape of Union Organizing? Graduate Student Assistant Organizing (NYU), Micro Units (Specialty Healthcare), and more. Justin F. Keith Paul J. Murphy October 3, 2013 G R E E N B E R G T R A U R I G, L L P A T T O R N E Y S A T L A W W W W. G T L A W. C O M 2013 Greenberg Traurig, LLP. All rights reserved.

2 Introductions > Greenberg Traurig Labor & Employment Law Practice > Presenters Justin F. Keith Paul J. Murphy 2

3 Overview > Applicability of National Labor Relations Act to Non- Union Employers > Graduate Student Assistant Organizing (NYU) > Micro-units (Specialty Healthcare) > Class Action Waivers and Arbitration Agreements > Legality of At-Will Provisions in Employee Handbooks and Confidentiality of Internal Investigations > Employee use of technology Navigating Social Media Employee Use of Company > What to Expect From the Obama Board 3

4 Applicability of National Labor Relations Act to Non-Union Employers 4

5 > National Labor Relations Board (NLRB) > National Labor Relations Act (NLRA) Framework 5

6 National Labor Relations Board (NLRB) > Five Member Board The Board has five Senate-confirmed members for the first time in a decade. Three Democrats, Two Republicans > Regional Offices > Administers the National Labor Relations Act (NLRA) Conducts elections Investigates and adjudicates unfair labor practice charges Enforces the National Labor Relations Act 6

7 NLRA Framework > Section 7 of NLRA Employee rights > Section 8(a) of NLRA Prohibits employer unfair labor practices (1935 Wagner Act) 8(a)(1) Catch-all provision 8(a)(2) Employer interference 8(a)(3) Discrimination 8(a)(4) Retaliation 8(a)(5) Duty to bargain > Section 8(b) of NLRA Prohibits union unfair labor practices (1947 Taft-Hartley Amendments) 7

8 Concerted Activities 8

9 Concerted Activities Section 7 of the NLRA provides: Employees shall have the right to engage in concerted activities for the purpose of mutual aid or protection. Employees have the right to work together (more than one employee) for the employees collective interests (not just an individual employee s interest) It is possible for a single employee to engage in concerted activities How? He must be thinking of other employees. 9

10 NLRB Enforcement Activity in Non-Union Sector > Key is protected concerted activity > See - The law we enforce gives employees the right to act together to try to improve their pay and working conditions or fix job-related problems, even if they aren't in a union. If employees are fired, suspended, or otherwise penalized for taking part in protected group activity, the National Labor Relations Board will fight to restore what was unlawfully taken away. 10

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12 Legal Challenge to NLRB Authority > New Process Steel Case, U.S. Supreme Court (2010) > Noel Canning Case, D.C. Circuit (2013) Supreme Court granted writ of certiorari on June 24, Other courts of appeals have reached similar conclusions NLRB v. New Vista Nursing and Rehab, 719 F.3d 203 (3d. Cir. 2013) Enterprise Leasing Co. Southeast, LLC, -- F.3d --, 2013 WL (4th Cir. 2013). 12

13 The changing organizing landscape: Graduate student assistnat organizing, micro-units, and amendments to NLRB election rules 13

14 Micro-units Specialty Healthcare > Specialty Healthcare, 357 NLRB No. 83 (2011) > At issue was a putative stand-alone bargaining unit of certified nursing assistants > In 3 1 decision, NLRB overruled Park Manor decision > Board also modified its standard for determining appropriate bargaining units for all employers > New standard: an employer seeking to include additional employees in a petitioned-for unit must show that the additional employees share and overwhelming community of interest with the unit > In Specialty Healthcare, Board found that the unit of CNAs was an appropriate unit 14

15 Micro-units Specialty Healthcare (cont.) > Board s decision enforced by the United States Court of Appeals for the Sixth Circuit > Kindred Nursing Centers East, LLC v. NLRB, Case Nos /1174 (6th Cir. Aug. 15, 2013) > Specialty Healthcare still under attack: Representation Fairness Restoration Act (H.R. 2347, S. 1166) Would legislatively overrule Board s decision > Other circuit courts of appeals may reach different conclusions Greenberg > Traurig, LLP gtlaw.com 15

16 Graduate student assistant organizing: New York University, 2-RC > Brown University, 342 NLRB 483 (2004) held that Brown s graduate student assistants were not employees within the meaning of the National Labor Relations Act. > NLRB found that the graduate student assistants have a primarily educational, not economic, relationship with their university. > Overruled New York University, 332 NLRB 1205 (2000) (NYU I) 16

17 Graduate student assistant organizing: New York University, 2-RC (cont.) > Since 2004, Brown decision has been criticized by unions > NLRB issued Notice and Invitation to file briefs in case involving NYU on June 22, 2012 > Case has been briefed fully and is currently pending before the NLRB 17

18 What Happens at the NLRB? > Notice of hearing. > Hearing or agreement on the bargaining unit. > Election within 42 days of the filing of the petition. > If union wins, company must bargain over wages, hours, and terms and conditions of employment. 18

19 What Happens at the NLRB? (cont.) > If union loses, no election for 12 months in the same bargaining unit. > Election is won by a majority of those voting. 19

20 Duration of NLRB Proceedings > Cards Days to Months > Petition to Election 45 to 60 Days > Challenges/Objections 5 working days after election > Hearing Weeks to months > Certification 7 days to months > Refusal to Bargain/ Years Test of Certification 20

21 Duration of NLRB Proceedings > Cards > Petition to Election > Challenges/Objections > Hearing > Certification > Refusal to Bargain/Test of Certification 21

22 Current NLRB Election Rules > Absolute right to a hearing to litigate issues, including: Supervisory status Scope of the unit > Right to file post-hearing briefs > Election typically scheduled at least 25 days after the NLRB s decision issues > Right to appeal the Regional Director s decision before the election 22

23 New NLRB Election Rules > New NLRB rules governing union representation elections were scheduled go into effect on April 30, > The new rules are currently stayed pending resolution of legal challenges to the Board s authority to implement the rules. > If or when the new rules take effect, they will dramatically change the way the NLRB handles union elections: No automatic right to a hearing. The Hearing Officer who is not a judge and has no judicial training makes the determination whether to hold a hearing. The Hearing Officer has discretion to refuse to allow a hearing if the number of employees in dispute is less than 10% of the union s proposed bargaining unit. 23

24 New NLRB Election Rules (cont.) > This means that if the union seeks an election of 50 people and includes 4 supervisors in that unit, the NLRB may refuse to allow a hearing and have the disputed supervisors vote under challenge. > This makes employers choose between two bad options: Treat the supervisors like employees and lose the ability to use them in the election campaign; or, Treat the supervisors as supervisors and run the risk that the NLRB will later determine they are employees and overturn the election. 24

25 New NLRB Election Rules (cont.) > Post-hearing briefs are only permitted if the hearing officer permits them. > No requirement that election be scheduled 25 days after the decision; may be scheduled much sooner. > No right to appeal until after the election. 25

26 Timeline Under the Old Rules > Petition to hearing: 10 days > Hearing: 1 5+ days > Post-hearing briefs: 7 14 > Time until decision: days > Time from decision until election: 25 days > Total: 75+ days in many cases from the date the petition is filed until the election is held 26

27 New NLRB Procedures Would Stack the Deck in Favor of Unions > Current Rules > New Rules Absolute right to a hearing Right to file post-hearing briefs Election typically scheduled at least 25 days after the NLRB s decision issues Right to appeal the Regional Director s decision before the election No automatic right to a hearing Post-hearing briefs are only permitted if the hearing officer permits them No requirement that election be scheduled 25 days after the decision; may be scheduled much sooner No right to appeal until after the election 27

28 Timeline Under the NEW Rules > Petition to hearing: 0 10 days > Hearing: 0 5+ days > Post-hearing briefs: 0 14 > Time until decision: days > Time from decision until election: 0 20 days > Total: As few as two weeks from the date the petition is filed until the election is held 28

29 What Would the New Rules Mean? > The significantly shortened time between the filing of a union election petition and the election itself means that the union has the upper hand in any campaign. > The union can collect cards of a period of months (up to a year) while generating support for a Yes vote. > But the employer may only have a few short weeks to communicate its views on unionization. 29

30 Update on NLRB Notice-Posting Rule > Poster rule > Currently not in effect while legal challenges to the rule are being resolved 30

31 NLRB Notice-posting Rule > Under this Rule, employers must post a Notice of Employee Rights where other workplace notices are customarily posted. > The Rule is currently not in effect pending resolution of legal challenges to the Board s authority to require the Notice. > The Notice purports to be neutral, but contains information about many pro-union topics, such as: The right to form or join a union The right to bargain collectively with your employer The right to picket or strike The right to take other concerted activity 31

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33 Class Action Waivers and Arbitration Agreements 33

34 Class Action Waivers Slide 7 34

35 Class Action Waivers > Increased use of mandatory arbitration agreements in the non-union setting > Inclusion of language precluding class claims > U.S. Supreme Court endorsed enforceability of class action waivers in arbitration provisions Stolt-Nielson S.A. v. Animal Feeds International Corp. (2010) AT&T Mobility LLC v. Concepcion (2011) 35

36 Class Action Waivers (cont.) > NLRB Issues D.R. Horton Inc., precluding class action waivers (1/2012) employers may not compel employees to waive their rights to collectively pursue litigation of employment claims in all forums, arbitral or judicial > NLRB reaffirms and extends D.R. Horton Inc. D.R. Horton reaffirmed in 24 Hour Fitness USA, Inc. (11/2012) Ruling extended to language in job applications Convergys Corp. (10/2012) > Numerous ALJ decisions have followed D.R. Horton and noted that, despite the refusal of numerous federal courts to follow D.R. Horton, the ALJs are bound by Board precedent unless and until it is reversed by the Supreme Court See e.g., Cellular Sales of Missouri, LLC, No. 14-CA (Aug. 19, 2013). 36

37 Class Action Waivers (cont.) > Courts generally reject NLRB reasoning and continue to enforce arbitration class action waiver: Richards v. Ernst & Young LLP, No (9th Cir. 2013) Owen v. Bristol Care, Inc. (8th Cir. 2013) Delock v. Securitas Security Services USA (E.D. Ark. 2012) Morvant, et. al. v. P.F. Chang s China Bistro, Inc. (N.D. Cal. 2012) Ryan v. JP Morgan Chase & Co. (S.D.N.Y. 2/22/2013) > American Express Co. v. Italian Colors Restaurant FAA does not permit courts to invalidate a waiver of class arbitration on the grounds that individual arbitration is too costly. 37

38 Mandatory Arbitration Provisions 38

39 Mandatory Arbitration Provisions > NLRB rejects use of broad mandatory arbitration provisions which do not specifically make clear that an employee may file NLRB charges. > Continues pattern of decisions barring use of policies which might be interpreted as precluding the exercise of Section 7 Rights. See e.g., Direct TV (NLRB 2013) (confidentiality rules) 39

40 Slide At-will 11 Employment Policies & Confidentiality Rules 40

41 At-will Employment Policies and Confidentiality Rules > Is at-will employment under attack? > Board finds blanket rule requiring confidentiality in workplace investigations unlawful. 41

42 Overbroad Policies > Work rule that would reasonably tend to chill employees in the exercise of their Section 7 rights is an unfair labor practice. > Two part inquiry: Express restriction on Section 7 rights. No express restriction, but: Employees reasonably believe the rule prohibits section 7 activity; Rule was announced in response to union activity; or Rule as applied restricts section 7 rights. 42

43 American Red Cross Blood Services No. 28-CA (2012 WL ) > Handbook contained at-will provision: I further agree that the at-will employment relationship cannot be amended, modified or altered in any way. > Administrative Law Judge (ALJ) found that: [T]he clause in question premises employment on an employee s agreement not to enter into any contract, to make any efforts, or to engage in conduct that could result in union representation and in a collective-bargaining agreement, which would amend, modify, or alter the at-will relationship. Clearly such a clause would reasonably chill employees who were interested in exercising their Section 7 rights. > Case settled after ALJ decision issued. 43

44 Hyatt Hotels Corp. No. 28-CA > Hyatt s handbook contained an at-will provision: I understand that my employment is at will. I acknowledge that no oral or written statements or representations regarding my employment can alter my atwill employment status, except for a written statement signed by me and either Hyatt s Executive Vice President/Chief Operating Officer or Hyatt s President. The sole exception to [Hyatt s ability to modify or delete policies] is the at-will status of my employment, which can only be changed in a writing signed by me and either Hyatt s Executive Vice President/Chief Operating Officer or Hyatt s President. > Case settled prior to hearing. 44

45 But Recent Guidance Suggests That Certain At-will Provisions May Be Permissible > The NLRB s Division of Advice issued two memoranda on October 31, 2012 finding at-will provisions lawful. > In Rocha Transportation, No. 32-CA , the Division of Advice found the following at-will policy lawful: No manager, supervisor, or employee of Rocha Transportation has any authority to enter into an agreement for employment for any specified period of time or to make an agreement for employment other than at-will. Only the president of the Company has the authority to make any such agreement and then only in writing. 45

46 Recent Guidance Suggests That Certain At-will Provisions May Be Permissible (cont d.) > In SWH Corporation d/b/a Mimi s Cafe, No. 28-CA , the Division of Advice found the following at-will policy lawful: The relationship between you and Mimi's Cafe is referred to as employment at will. This means that your employment can be terminated at any time for any reason, with or without cause, with or without notice, by you or the Company. No representative of the Company has authority to enter into any agreement contrary to the foregoing "employment at will" relationship. Nothing contained in this handbook creates an express or implied contract of employment. 46

47 Recent Guidance Suggests That Certain At-will Provisions May Be Permissible (cont d.) > In both cases, the Division of Advice focused on the fact that the policies at issue did not use the personal pronoun I. The Division of Advice therefore distinguished American Red Cross on the grounds that the policy in that case (which used the word I ) could be read as a waiver of rights. > What does this mean? NLRB appears to be taking a more nuanced approach to its analysis of at-will policies than the earlier cases suggested. NLRB will likely continue to find unlawful at-will policies that appear to waive the right to change the at-will relationship. 47

48 Internal Investigations 48

49 Confidentiality Rules in Investigations > Banner Health System, 358 NLRB. No. 93 (2012) > Employer s HR department used standard form for conducting interviews as part of internal investigations. > Form noted that employees should be told not to discuss ongoing investigations. > HR frequently instructed employees not to discuss investigations. 49

50 Banner Health System (cont.) > Board found that the instruction viewed in context, had a reasonable tendency to coerce employees, and so constituted an unlawful restraint of Section 7 rights. > Board rejected blanket approach to protecting integrity of investigations. > Employer has the burden to first determine whether in any give[n] investigation witnesses need[ed] protection, evidence [was] in danger of being destroyed, testimony [was] in danger of being fabricated, or there [was] a need to prevent a cover up. 50

51 Recent Emphasis on Social Media Cases 51

52 Social Networking > Two kinds of unfair labor practice charges in social media realm: Retaliation for protected, concerted activity Overbroad social media policies Policies are overbroad if they prohibit, expressly or by application, Section 7 protected, concerted activity > Vast majority of cases are being brought against nonunion employers 52

53 Overbroad Social Media Policies > Acting NLRB General Counsel has issued several guidance memoranda setting forth his enforcement position on social media policies > A policy will likely be found to be overbroad and unlawful where it contains any of the following: restrictions on the use of company logos restrictions on identifying the employer and the employee s affiliation with the employer prohibitions against posting pictures in uniform or wearing the employer s logo requirements that the employee state that social media posts are his/her own views and the not employer s views each time he/she posts prohibitions against making disparaging comments about the employer prohibitions against disrespectful conduct prohibitions about inappropriate conversations 53

54 Specific Examples of Overbroad Social Media Policies (as identified by the Acting General Counsel) > A policy that prohibited employees from disclosing or communicating information of a confidential, sensitive or non-public nature concerning the company on or through company property to anyone outside the company without prior approval of senior management or the law department. [1] > A policy prohibiting employees from posting pictures of themselves in any media.. which depicts the Company in any way, including but not limited to a Company uniform, corporate logo [2] > A social media policy prohibiting the [u]se of company logos, photographs of any Company store, brand, or product, or use of any other intellectual property. [3] [1] Mem. OM at 13. [2] American Med. Response of Conn., Inc., Case No. 34-CA [3] Advice Memorandum, Giant Eagle, Inc., Case No. 6-CA-37250, at 2 (June 22, 2011). 54

55 Specific Examples of Overbroad Social Media Policies (as identified by the Acting General Counsel) (cont.) > A policy prohibiting employees from making disparaging... comments when discussing the Company or the employee s superiors, co-workers, and/or competitors. [1] > A policy prohibiting [m]aking disparaging comments about the company through any media, including online blogs, other electronic media or through the media. [2] > A policy stating that employees could not establish or participate in a website or social network that disparages, misrepresents or negatively impacts the employer without prior consent.[3] [1] American Med. Response of Conn., Inc., Case No. 34-CA [2] See Mem. OM at 3-4. [3] Children s Hospital of Pittsburgh of UPMC, Case No. 6-CA (Complaint issued Oct. 29, 2010). 55

56 Specific Examples of Overbroad Social Media Policies (as identified by the Acting General Counsel) (cont.) > A policy prohibiting employees from identifying themselves as the Employer s employees, unless there was a legitimate business need to do so or when discussing terms and conditions in an appropriate manner. [1] > A policy prohibiting employees from using social media to engage in unprofessional communication that could negatively impact the employer s reputation or interfere with the Employer s mission or unprofessional / inappropriate communication regarding members of the Employer s community. [2] [1] See Mem. OM at 7. [2] See Mem. OM at 7 56

57 Social Networking > What social media activity is protected under the NLRA and what is not? > Several recent ALJ decisions offer guidance for employers. > Only Board decision offers little guidance. 57

58 The NLRB s Social Media Decisions > The NLRB issued its first decision in a social media case in Costco Wholesale Corp. on September 7, > Costco involved a challenge to the employer s social media policy: Any communication transmitted, stored or displayed electronically must comply with the policies outlined in the Costco Employee Agreement. Employees should be aware that statements posted electronically (such as [to] online message boards or discussion groups) that damage the Company, defame any individual or damage any person s reputation, or violate the policies outlined in the Costco Employee Agreement, may be subject to discipline, up to and including termination of employment. 58

59 Costco Wholesale Corp > Social media policy in Costco did not explicitly restrict Section 7 rights. > Board concluded that the policy s broad prohibition against making statements that damage the Company, defame any individual or damage any person s reputation clearly encompasses concerted communications protesting the Respondent s treatment of its employees. 59

60 Costco Wholesale Corp (cont.) > Employer ordered to revise its nationwide employee handbook to remove the unlawful rules. > Board s decision suggests but does not decide that a disclaimer provision could have effected the outcome. Note: the Acting General Counsel has taken the position that such disclaimers will not rescue an unlawful policy. This issue will likely be resolved by the Board in a future case. 60

61 Karl Knauz Motors, Inc. > Decided shortly after Costco > Employer s courtesy rule at issue: Courtesy: Courtesy is the responsibility of every employee. Everyone is expected to be courteous, polite and friendly to our customers, vendors and suppliers, as well as to their fellow employees. No one should be disrespectful or use profanity or any other language which injures the image or reputation of the Dealership. 61

62 Karl Knauz Motors, Inc. (cont.) > NLRB reaches a similar conclusion as in the Costco case: We find the Courtesy rule unlawful because employees would reasonably construe its broad prohibition against disrespectful conduct and language which injures the image or reputation of the Dealership as encompassing Section 7 activity, such as employees protected statements whether to coworkers, supervisors, managers, or third parties who deal with the Respondent that object to their working conditions and seek the support of others in improving them. 62

63 Karl Knauz Motors, Inc. (cont.) > The NLRB issued its first decision in a case arising out of an employee s termination for social media activity on September 28, > Two Facebook postings at issue: Post by employee of a photo of a wrecked Range Rover accompanied by sarcastic commentary. Criticism of the employer s decision to serve hot dogs, chips, and bottled water at an event to promote the BMW 5-Series: Nope, that s not champagne or wine, it s 8 oz. water. 63

64 Karl Knauz Motors, Inc. (cont.) > ALJ found that the employee was fired solely for his post about the Range Rover accident, which was not protected: It was posted solely by [the employee], apparently as a lark, without any discussion with any other employee of the Respondent, and had no connection to any of the employees terms and conditions of employment. > NLRB agreed with the ALJ. > Decision provides guidance regarding the post about the employer s promotional event, which presents a much closer case. 64

65 Hispanics United of Buffalo, Inc. > Decided in December 2012 > Employees of a non-profit organization participated in Facebook postings about a coworker who they believed intended to complaint to management about their work performance. > Sample comments included: What the f... Try doing my job I have 5 programs What the Hell, we don t have a life as is, What else can we do??? 65

66 Hispanics United of Buffalo, Inc. (cont.) > Employer fired five employees who participated in the postings, citing its zero tolerance harassment and bullying policy. > NLRB concluded that the Facebook postings constituted concerted activity and were protected under the NLRA. > Ordered reinstatement of the terminated employees. 66

67 Social Networking > Protected or Not??? I was happy to see that Knauz went All Out for the most important launch of a new BMW in years the new 5 series. A car that will generate tens in millions of dollars in revenues for Knauz over the next few years. The small 8 oz bags of chips, and the $2.00 cookie plate from Sam s Club, and the semi fresh apples and oranges were such a nice touch but to top it all off the Hot Dog Cart. Where our clients could attain a over cooked wiener and a stale bun 67

68 Social Networking > Protected or Not??? It s a Damn shame when ur own boss don t even care about ur health. Smh I Damn there had a heart attack on the fukin floor I bet he would let me go home if I was w*$#% I m not even going to say it lmao. 68

69 Social Networking > Protected or Not??? So I just learned that a fellow coworker/ bartender is a cheater! He has been screwing over our faithful customers! Very nice! 69

70 Social Networking (cont.) > What s the difference between protected activity and unprotected activity? > The law is still developing Only a handful of NLRB decisions on social media so far: Costco, Knauz Motors, and Hispanics United. The majority of the current guidance comes from memoranda from the NLRB s general counsel and decisions of Administrative Law Judges > Based on this guidance, an invitation to multiple employees will likely be protected, especially if they respond > One-off venting or e-griping is likely not protected BUT, the line between griping and concerted activity is very fine and may be separated by nothing more than another employee pressing the like button on Facebook or re-tweeting a comment. 70

71 Employee Use of Company 71

72 Employee Use of Company > Register Guard, 351 NLRB 1110 (2007) > Landmark decision regarding employee use of company for union activity. > Board Majority (3-2) concluded that Section 7 of the NLRA does not give rise to a right to use an employer s system for union activity. > Thus, an employer may lawfully maintain and enforce policies restricting the use of company , so long as those restrictions are not drawn along Section 7 lines and the company does not discriminate against union activity in its enforcement of the policy. > Register Guard also changed the test the Board uses when evaluating alleges that an employer enforced its policy in a discriminatory manner in response to union activity. Under prior Board law, employers generally had to show that their policies prohibited all non-work related solicitations. New test announced in Register Guard asks whether there was discrimination along Section 7 lines > This analysis gives employers more flexibility in permitting some non-work use of s without opening up their servers to union activity. 72

73 Employee Use of Company > For example, a policy could permit ed solicitations for charitable organizations but ban solicitations for other kinds of organizations. > Policy could not prohibit prounion s but allow antiunion s only, or permit solicitations for other membership-based organizations but not unions. > Policy must be uniformly enforced. 73

74 What to Expect from the Obama Board 74

75 What to Expect from the Obama Board > Renewed efforts to changes the timing and proceedings in union election cases. > Increased access to employer property by union organizers (Roundy s case). > Register-Guard revisited. > Micro-units. 75