4/3/2018 THE NEW NLRB 2017 AND BEYOND. What is the NLRB? Becky S. Knutson

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1 DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C. 1 THE NEW NLRB 2017 AND BEYOND Becky S. Knutson 2 What is the NLRB? The National Labor Relations Board is an independent federal agency vested with the power to safeguard employees rights to organize and to determine whether to have unions as their bargaining representative. The agency also acts to prevent and remedy unfair labor practices committed by private sector employers and unions. 3 1

2 Who is covered by the NLRA? Employees of and Employers with: Gross revenues <$500,00 in one year Purchases of goods and services <$500 from interstate commerce Not: State, city or public employers Agricultural, domestic, family employees Employees specifically covered by other federal law Supervisors 4 Who are the major players at the NLRB? Board Members: Marvin Kaplan, R new Chairman Peter Robb General Counsel: William Emanuel, R Mark Pearce, D Lauren McFerran, D John Ring, R waiting for confirmation 5 What major happened in 2017? Majority changed from 3 Democrats New General Counsel Joint employer standard changed returned to former standard New standard for reviewing work rules not related to protected activities 6 2

3 NLRB restores joint employer rules What was it? Browning-Ferris (2015) exercised or reserved right to exercise control direct or indirect control limited and routine control considered What is it now? Hy-Brand Industrial Contractors, Ltd., 365 NLRB No. 156 (Dec. 14, 2017) actual exercise of joint control over essential employment terms direct and immediate control not just limited and routine matters must be hiring, firing, discipline, supervision and direction 7 NLRB restores joint employer rules Why does it matter? Material to findings of responsibility, liability by NLRB who gets sued and who is subject to damages and remedial orders for violations 8 NLRB Changes Standard for Work Rules Unrelated to Protected Activity What is protected activity? Section 7 of the NLRA provides that employees have the right to organize, join, or refuse to join labor organizations, bargain collectively and engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection unless otherwise required by an agreement requiring membership 9 3

4 Standard for Work Rules Unrelated to Protected Activity Lutheran Heritage Village Livonia Mere maintenance of facially neutral rule or policy may violate NLRA if employees would reasonably construe the language to prohibit Section 7 activity Examples: workplace civility rules making false statements about the employer disclosure of information, prohibiting recording prohibiting use of employer s logos conducting personal business at work 10 Standard for Work Rules Unrelated to Protected Activity Recent Court decisions before December nd Circuit June 2017 Whole Foods Marketing Group, Inc. v. NLRB Policy prohibiting recording conversations, calls, meetings without prior approval violates Sec Standard for Work Rules Unrelated to Protected Activity New Standard The Boeing Company (Dec. 14, 2017) when evaluating a facially neutral policy, rule or handbook provision that, when reasonably interpreted, would potentially interfere with the exercise of NLRA rights, the Board will evaluate two things: (i) the nature and extent of the potential impact on NLRA rights, and (ii) legitimate justifications associated with the rule 12 4

5 NLRB Clarifies Tests to Evaluate Protected Activity KHRG Employer LLC (Feb. 20, 2018) Employee engages in security breach during organizing drive Leads non-employees into non-public, secure areas to deliver petition to General Manager Falsely tells guard all are employees NLRB finds: non-verbal misconduct negates Act s protections for protected activity affirms employer right to a secure facility 13 8 th Circuit - Sick Day Posters 8 th Circuit found that employees Section 7 communications lost their protected status during organizing campaign Posters protested sick leave policy requiring workers to find a replacement when they called in sick sharp, public, disparaging attack upon the quality of the company s product and its business policies MikLin Enterprises, Inc. v. NLRB, No (8th Cir. July 3, 2017) 14 NLRB Overturns Micro Unit Decision Specialty Healthcare & Rehabilitation Center of Mobile, 2011 Burden on employers to prove overwhelming community of interest of employees to require larger units for voting and bargaining when petition is for small unit PCC Structurals, Inc. (2017) No deference to Specialty Healthcare Return to traditional community-of-interest standard 15 5

6 Will Ambush Election Rules Remain? Board Request for Information (Dec. 12, 2017) Seeks comments on retaining, modifying, or rescinding 2014 election rules Time for comments extended to March 19, Other Changes Signaled by Board Board has withdrawn former General Counsel s position on whether certain graduate students and student athletes are employees Board will review blocking charge rule filing of unfair labor practice charge to prevent decertification elections 17 General Counsel Changes Peter Robb, General Counsel sworn in Nov 17, 2017 Conference call January 11, 2018 Talks about reorganization eliminating current regional offices replace with large Districts Staff changes demotions Transfer Regional Directors decision making authority to new positions under GC Not a final plan at this time 18 6

7 Other Potential Changes Mandatory Submissions Memo identifies areas for re-examination Use of employer by employees Other handbook provisions found in violation of Section 7 Standards for review of employer work rules Cases for mutual aid and protection now applies to single employee issues Obscene, vulgar or other highly inappropriate conduct 19 QUESTIONS? BeckyKnutson@davisbrownlaw.com DAVIS, BROWN, KOEHN, SHORS & ROBERTS, P.C. 20 7