BOTTOM LINE HAPPINESS THROUGH POSITIVE

EMPLOYEE RELATIONS The Role Social Media, the NLRB and

Unions Can Play in Building or Breaking Workplace Relationships

A Showing of Hands• Does your company…..

– Use social media to promote your employment brand?

– Use social media to speak to your customers?– Use social media for positive employee

relations?• Have you experienced a corporate

campaign?• Have you experienced union organizing?

Overview• Current Landscape• Activism on many fronts

– Labor Organizations– Government Agencies

• What you need to know

CURRENT LANDSCAPE

Current State of Labor Relations

• Union Membership in Steep Decline• Unions are Shifting Focus to Service Sector• Organizing Efforts in Non-Union Areas• Emergence of “Alt-Labor”• NLRB Activism• Movement of Issues to Local Level

– Minimum Wage, Schedules, Paid Leave

Declining Union Membership

Labor is Rebranding“It’s pretty obvious to all of our progressive partners that none of us can do it alone. If we’re going to change the political and economic environment, it’s going to take us all working together.AFL-CIO President Richard L. Trumka

“You can’t solve the problem of the labor movement or the progressive movement until you restore the belief in collective power.”Karen Nussbaum, Executive Director, Working America, an AFL-CIO affiliate

What Employers Face Today• Activist NLRB

– Protected Concerted Activity (all employees)

– Handbooks /Social Media

– “Ambush” Election Rules

– Email Access and Electronic Signatures

– Joint Employer– Access to Property

• Labor Activism– Worker Centers/ Service

sector campaigns – McDonald’s, Walmart,

Fight for $15– Issue Driven Campaigns

• Minimum Wage• Steady Work

Schedule• Paid Leave• Tipped Wages

Labor Campaign Approach - 2016

Target Brand

Fight for $15

Paid Leave

Work Schedule

Wage Theft

NLRB & Joint EmployerCommunity Organizing Social Media – PCA & OrganizingProtected Concerted Activity

ACTIVISM ON MANY FRONTS

Fight for $15 – “Whatever it takes”

v

Fight for $15 - Tactics• Not traditional labor unions -

funding• Brand attacks via social media• Protest and occupy• Cooperation with labor unions

and other activist groups• Demographic shifts elevating

interest in labor causes– Women, minorities and youth

more receptive to related issues like immigration, part-time work, and minimum wage

• Pew Research shows 51% of Americans in favor of labor unions

Going to Cali, and NY…..and

Organizing with technology

• Facebook• Snapchat• Twitter• Kik• GroupMe

Smart Phones & Texting

• Under the new “ambush election rules” employers are now REQUIRED to furnish telephone numbers.

• This includes cell phone numbers• Unions have been using text

messaging for organizing for a long time.

• Expect texting to increase.

The Mission – to boldly go where no NLRB has gone before!

NLRB - “The law we enforce gives employees the right to act together to try to improve their pay and working conditions, with or without 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.”

The NLRB & General Counsel

X

NLRB.GOV

NLRB Opens Case Against McDonald’s

“This would represent a sea change in how franchisees and franchisors deal with each other.” - Paul Millus (Quote & photo via QSR Magazine)

Protected Concerted Activity• Pay and

working conditions

• Letters/petitions

• Employees request a meeting

• Picketing and protesting

• ULPs

Social Media and PCA – still an issueNLRB orders reinstatement and back pay after termination over tweets and old policy.

Photo: Philly.com

Triple Play• "Maybe someone should do the

owners of Triple Play a favor and buy it from them. They can’t even do the tax paperwork correctly!!! Now I OWE money...Wtf!!!!“

• "Hahahaha he’s such a shady little man. He prolly [sic] pocketed it all from all our paychecks.“

• “I owe too. Such an a**hole.” Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

Triple PlayThe Board said:• “The employees engaged in protected concerted

activity by taking part in a social media discussion among offsite, off-duty employees, as well as two non-employees…. Although we do not condone her conduct, we find that Sanzone’s use of a single expletive to describe a manager, in the course of a protected discussion on a social media website, does not sufficiently implicate the Respondent’s legitimate interest in maintaining discipline and order in the workplace…”

Three D, LLC (Triple Play), 361 NLRB No. 31 (2014)

The Picket LineAn employee was caught on video making racist remarks:“Hey, did you bring enough KFC for everyone?”• “Hey, anybody smell that? I smell

fried chicken and watermelon.” 

http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

The Picket Line

• The NLRB said:• “[The] “KFC” and “fried chicken and watermelon”

statements most certainly were racist, offensive, and reprehensible, but they were not violent in character, and they did not contain any overt or implied threats to replacement workers or their property….The record evidence in this case does not establish that Runion’s statements were coercive or intimidating to the exercise of employees’ Section 7 rights, and it does not establish that the statements raised the likelihood of imminent physical confrontation.”

http://www.scribd.com/doc/268209701/Cooper-Tire-Rubber-Company

More WTF?• Employees at ATT&T show

up at work wearing buttons that read:

• “WTF Where’s the Fairness?”

• “FTW Fight to Win” • “Cut the Crap! Not My

Healthcare.”• AT&T sends employees

home after refusing to remove the buttons before leaving the office to work in and around customer homes and businesses.

More WTF?The Board disagreed with AT&T:• “We agree with the judge that

the content of the “WTF,” “FTW,” and “Cut the Crap!” buttons and stickers was not so vulgar and offensive as to cause employees wearing them to lose the protection of the [National Labor Relations Act].  In particular, we emphasize that the “WTF” and “FTW” buttons and stickers provided a nonprofane, nonoffensive interpretation on their face.”

Common sense sometimes matters

• During contract negotiations in 2009 Communications Workers in Connecticut wore T-shirts with “Inmate # ____” on the front and “Prisoner of AT$T” on the back. The boss said they could not wear them if they were going into customer homes or were working in public. Many did anyhow, and 183 got suspended.

• Board said it was okay!!!• DC Circuit overturned in July

http://www.cadc.uscourts.gov/internet/opinions.nsf/80AD773E2F0DF13385257E7E0052C14A/$file/11-1099-1561845.pdf

Perez Pier Sixty• While on break at work, employee

uses his iPhone to post about his boss on his personal Facebook page:

• “Bob is such a NASTY MFer don’t know how to talk to people!!!!!!! F*** his mother and his entire f***ing family!!!!

• What a LOSER!!!! Vote YES for the UNION!!!!!!!”

http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

Perez Pier Sixty• “The overwhelming evidence establishes

that, while distasteful, the Respondent tolerated the widespread use of profanity in the workplace, including the words “f**k” and “m*****f***er.” Considered in this setting, Perez’ use of those words in his Facebook post would not cause him to lose the protection of the Act.”

• They ordered reinstatement!!!

http://www.scribd.com/doc/260742549/Perez-Pier-Sixty

Protected TweetsIn January 2015, after a customer tweeted out thanks for a freebie at Chipotle's, Kennedy tweeted back, “@ChipotleTweets, nothing is free, only cheap #labor. Crew members only make $8.50hr how much is that steak bowl really?"

What to do?• One Approach

WHAT YOU NEED TO KNOW

Upping the Ante

Integrated Strategies

Employer of Choice

Brand & Reputation

Management

Union Campaign ReadyCorporate

Campaign ReadyWorker Center

Specific

Why Employees Seek A UnionEmployees join unions for a reason, including:• Failure to address employee concerns• Perceived favoritism• Poor communication• Heavy-handed management• Management not responsive to employee

issues or questions• Actual or Perceived Unfairness• Poor Working Conditions

Impact Of A Union• Changes Your Company Culture• “Us vs. Them”• No Longer Able to Deal Directly With

Employees• Higher Cost, Less Efficient• External Issues More Likely

The Election Process

Authorization Cards • Petition for election• Election Campaign

Activities• Excelsior List• Communication• Bar to Election

What to do?• Have a drink• Review handbook and

policies regularly• NLRB guidance

memos from General Counsel

• Hire competent legal counsel

• Treasure your employees

• Get started now!

Responding• Must be strategic and

tactical• Labor relations training • Executive team support• Cultural values • Proactive monitoring of

social media • Cross functional

response teams trained• Protect property rights,

Off-duty law enforcement

Labor Relations 101• Avoid Unfair Labor

Practices (ULP) by practicing TIPS and FOE

• TIPS: THREATEN INTERROGATE PROMISE SPY

• FOE : FACTS OPINIONS EXPERIENCES

• Increased complaints/charges• Group actions or petitions• Secretive conversations that stop when Managers

approach • Comments regarding unions• Threats by Crewmembers who have been disciplined

Labor Response Plan• Culture of company matters• Communication & Trust• Train supervisors • Company policies and procedures• Consistent, fair and non-discriminatory

treatment• Management/leadership trained w/ written

plan• Legal restrictions and obligations NLRB, EEO,

OSHA, DOL wage/hour)

Daily Actions MatterWork HR and managers can do daily!

• Say “Thank You” • Resolve Problems (Open Door)• Active safety programs• Active employee recognition• Employee feedback process and action on feedback• Supervisory training and monitoring• Active management communications process in place• Employee engagement in process• Audit for consistent policy administration and trust in

supervision

Thank you

Michael VanDervortExecutive Director

CUE Inc. – an organization for positive employee relations

863-370-3560Mvandervort@cueinc.comTwitter: @MikeVanDervort