What s Up With the NLRB

Transcription

1 What s Up With the NLRB Understanding How the NLRB May Impact Your Workplace Policies Sandra Hoglund Hanson Davenport, Evans, Hurwitz & Smith, L.L.P. The contents of this presentation are not intended as legal advice. Please consult an attorney for advice regarding your individual circumstances

2 What Is the NLRB? The National Labor Relations Board (NLRB) is a federal governmental agency charged with enforcing the National Labor Relations Act (NLRA).

3 What Is the NLRA? The NLRA was passed in 1935 to protect the rights of employees, encourage collective bargaining, and curtail certain labor and management practices in the private sector.

4 What Is the NLRA? The NLRA gives employees the right to organize, bargain collectively, and engage in strikes, picketing and concerted activities.

5 What Is the NLRB? Two parts The Board and General Counsel

6 The Board 5 members Appointed by the President Acts as a quasi-judicial body deciding cases 26 Regional offices.

7 General Counsel General Counsel appointed by President Investigates and prosecutes unfair labor practices

8 Recent News About The Board Because of appointment system, subject to political winds of fortune. 5-member board & 3-member quorum required to act Recess appointments occurred

9 Recent News About The Board Noel Canning U.S. Supreme Court ruled 3 NLRB recess appointments unconstitutional, casting doubt on validity of several regional director appointments by the board Our work force is not unionized. So we don t have to worry about the NLRB, right?

10 Why Care About The NLRB? NLRB has jurisdiction over almost all private employers Even if there is no union in your workplace.

11 What Does the NLRB Do? National Labor Relations Act: Section 7 Employees shall have the right to selforganization, to form, join, or assess labor organizations, to bargain collectively through representatives of their own choosing, and to engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection U.S.C. 157.

12 What is Concerted Activity? Conduct engaged in on behalf of others, whether undertaken by 2 or more employees, or by 1 employee on behalf of others. Meyers Indus., 268 NLRB 493, 496 (1983). Includes individual employees seeking to initiate, induce, or prepare for group action, as well as individual employees voicing group complaints.

13 What is Not Concerted Activity? Does not include activities by a single individual undertaken for own personal benefit which do not invoke any group concerns. Personal gripes not protected.

14 Protected Activity Employee s conduct must also be protected for the purpose of mutual aid or protection. 29 U.S.C This includes employee efforts to improve the terms and conditions of employment.

15 Protected Activity Does Not include actions that are intended merely to harass the employer. Sabotage Lies Violation of trade secrets Vandalism

16 Unfair Labor Practices Employers may not interfere with, restrain, or coerce employees in the exercise of the rights guaranteed in Section 7 of the NLRA Threats Surveillance Interrogation or harassment Promises Discipline Worsen work rules or conditions

17 What is the NLRB Up To? Employee work rules Employee handbooks Social media policies Confidentiality policies Employee discipline

18 Fresh & Easy Investigation A woman s efforts to obtain help from coworkers in raising sexual harassment complaint is concerted activity protected by the NLRA. Fresh & Easy Neighborhood Market, Inc. and Margaret Elias, Case 28 CA (2014).

19 Fresh & Easy Employee sought witness statements from coworkers to support her sexual harassment complaint Training program on selling alcohol White board altered, with drawing of worm or peanut urinating on employee s name Employee asked co-workers to sign her drawing of altered white board

20 Fresh & Easy However, employer did not violate NLRA by questioning employee about why she obtained witness statements from co-workers or instructing her to not take additional statements

21 Starbucks Firing Starbucks fired employee who used profanity with customers present Employee got into profanity-ridden confrontation with ass t mgr; happened when employee off-duty; employee came to store with group of employees protesting a ban on wearing union pins

22 Starbucks Firing NLRB ruled termination violated NLRA Profanity not so egregious as to lose NLRA protection Starbucks policy prohibiting wearing more than one pro-union button at once unlawful Termination motivated in part by pro-union activities; inconsistent with more lenient treatment of other employees for worse misconduct; employee provoked by ass t mgr.

23 Hooters Firing Waitress complained bikini contest was rigged Marketing coordinator took 1 st place Employee sarcastically congratulated winner on cheating and got into heated confrontation with another employee, using profanity V.P. told employee fired for cursing at coworker; employee denied cursing; V.P. said fired for negative social media posts

24 Hooters Firing Before contest, employee relayed complaints to mgmt about contest being rigged and employees being forced to participate without pay Mgmt knew employee s concerns were about working conditions, possibly additional wages

25 Hooters Firing NLRB Judge found numerous handbook rules unlawful Policy forbidding employees from discussing tips with other employees or guests Policy prohibiting insubordination, b/c no limiting language Policy mandating being respectful to company Overly broad nondisclosure language

26 Likes Protected Triple Play Sports Bar and Grille violated NLRA by firing 2 employees for participating in Facebook discussion critical of the employer

27 Likes Protected Employee 1 Status Update saying owners can t even do the tax paperwork correctly and someone should do them a favor and buy the business from them Employee 2 Comments and Likes

28 Costco Defamation Policy Costco s handbook included policy stating: 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.

29 Costco Defamation Policy NLRB concluded this violated Act because employees could reasonably conclude prohibition on defamation clearly encompassed communications contesting the treatment of employees & did not include limiting language

30 Knauz BMW Courtesy Policy The rule stated, [e]veryone 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 [employer].

31 Knauz BMW Courtesy Policy Courtesy rule violated the Act because employees would reasonably construe its broad prohibition on discourteous conduct as encompassing Section 7 activity namely, employee statements objecting to working conditions. Moreover, employees would reasonably read the rule s prohibition on injurious language as applying to statements of protest or criticism of the employer.

32 Confidentiality of Investigations Banner Health System -- a policy requiring employee-witnesses to maintain confidentiality of workplace investigations interfered with the employees Section 7 rights to engage in protected concerted activity because interfered with employees rights to communicate about workplace issues

33 Confidentiality of Investigations Approved handbook language: Employer has a compelling interest in protecting the integrity of its investigations. In every investigation, Employer has a strong desire to protect witnesses from harassment, intimidation, and retaliation, to keep evidence from being destroyed, to ensure that testimony is not fabricated, and to prevent a cover-up.

34 Confidentiality of Investigations Employer may decide in some circumstances that in order to achieve these objectives, we must maintain the investigation and our role in it in strict confidence. If Employer reasonably imposes such a requirement and we do not maintain such confidentiality, we may be subject to disciplinary action up to and including immediate termination.

35 Confidentiality of Investigations Case-by-case determination still needed

36 Employee Behavior and Conduct Policies Policies requiring courtesy and respect Policies prohibiting rudeness, profanity, offensive, intimidating or threatening behavior

37 Employer Behavior and Conduct Policies If ambiguous, may interfere with protected concerted activity Include savings or limiting language

38 Non-Disparagement Policies Policies prohibiting disparaging employer, management, co-workers, company products, suppliers, customers Policies prohibiting misuse of company name, logo, trademarks

39 Non-Disparagement Policies NLRB says overbroad & interference But may allow protection of company intellectual property Include savings, limiting language

40 Media Contact and Employee Access Policies Policies seeking to control communications with media Policies seeking to prohibit employees from staying or returning to company property when off-duty Likely viewed as unlawful interference with protected concerted activity

41 Union-Free Statements General Counsel has taken position that union-free policy language likely unlawful interference Not settled NLRA gives employer right to express opinions on unions and desire to remain union-free

42 Contact with Law Enforcement and Government Policies seeking to control who contacts law enforcement and government and what communications occur Likely to be deemed unlawful interference; may also have issues with EEOC, OSHA, FLSA, etc.

43 Employment At-Will Policies NLRB has taken position that such policies or disclaimers are unlawful because employees may believe that seeking union representation would be futile Position seems strained Amend policy to state at-will status may not be changed on behalf of the employer except by means of a writing signed by employer s agent with authority to make change.

44 Joint Employer - Franchises General Counsel asserts McDonald s can be held liable as joint employer for any unfair labor practices of its franchisees Related issue whether Browning-Ferris Industries and staffing agency are joint employers

45 Takeaways Review handbooks, policy manuals, social media policies, work rules, plant rules, individual employment agreements, discipline and investigation forms Include savings, limiting language In discipline, review potential for interference claim If franchise or other potential joint employer, keep abreast of developments

46 Questions? Contact Sandra Hanson Davenport, Evans, Hurwitz & Smith, LLP 206 W. 14 th Street Sioux Falls, SD (605)