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Presented By:

Howard Rubin

NAVIGATING THE LEGAL LANDSCAPE IN 2015Columbia Basin SHRM – February 18, 2015

6.7% of private employer’s employees were union members in 2013.

Limit on NLRB’s relevance?

Non-Unionized Employers

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NLRB’s Jurisdiction

NLRB’s Jurisdiction = private employers who engage in interstate commerce.

How does the NLRB impact non-unionized employers?

– Overzealous interpretation of rules and policies.– Overzealous interpretation of Protected

Concerted Activity (PCA).– Related to wages, hours, and working conditions

– including complaints about the employer or management

– www.nlrb.gov/concerted-activity

NLRB’s Jurisdiction

Pertinent NLRA Sections

Section 8(a)(1) – Cannot interfere with, restrain or coerce employees in the exercise of Section 7 rights.

Section 7 – Employees shall have the right to: – self-organization– form, join, or assist unions– bargain collectively– engage in PCA– refrain from these activities

PCA: Social Media

Is clicking on Facebook a protected concerted activity? “YES”

Expression of support “was sufficiently meaningful as to rise to the level of PCA.”

Three D, LLC d/b/a Triple Play Sports Bar and Grille, 361 NLRB No. 31 (Aug. 22, 2014).

PCA: Getting Statements from Coworkers

Seeking statements from co-workers to support a sexual harassment complaint is PCA.

“[C]oncertedness is not dependent on a shared objective or on the agreement of one’s coworkers with what is proposed.”

“An injury to one is an injury to all.”Fresh & Easy Neighborhood Market, Inc., 361 NLRB No.12 (August 11, 2014).

What Happened to Confidential Investigations?

NLRB held unlawful the employer’s routine practice of asking employees involved in investigations not to discuss them with coworkers.

Requesting confidentiality of the investigation is allowed only if the company demonstrates it is necessary to a legitimate business interest Must first show legitimate business justification

Protect witness Preserve testimony Prevent a cover-up Another legitimate business interest

Banner Health, 358 NLRB No. 93 (July 30, 2012)

What Happened to Confidential Investigations?

Determine confidentiality on a case-by-case basis.

Circumstances must justify confidentiality (e.g., witnesses need to be protected, evidence is in danger of being destroyed, testimony is in danger of being fabricated, or there is a need to prevent a cover-up).

KEY: No blanket confidentiality requirements.

Employee Handbooks

Remember: Employers may not promulgate a rule that “reasonably tends to chill employees” exercise of PCA.

The Legal Standard

Explicit restrictions Implicit restrictions

(1) the rule is reasonably construed to prohibit Section 7 activity;

(2) the rule was promulgated in response to union activity; or

(3) the rule has been applied to restrict Section 7 rights.

At-Will Disclaimer/Acknowledgement

I agree that the at-will employment relationship cannot be amended, modified, or altered in any way.

UNLAWFUL

American Red Cross Arizona Blood Services Region, 28-CA-23443 (Div. of Judges, Feb. 1, 2012)

At-Will Disclaimer/Acknowledgement

Only the Company President is authorized to modify the Company’s at-will employment policy or enter into any agreement contrary to this policy. Any such modification must be in writing and signed by the employee and the President.

LAWFUL

Windsor Care Center, 32-CA-087540 (NLRB Div. of Advice Memo, Feb. 4, 2013)

I Don’t Get No Respect

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 Company].

UNLAWFUL

Karl Knauz Motors, Inc., 358 NLRB No. 164 (Sept. 28, 2012)

I Don’t Get No Respect

You may not make disparaging or defamatory comments about [Company], its employees, officers, directors, vendors, customers, partners, affiliates or our, their, services.

UNLAWFUL

Dish Network Corp., 359 NLRB No. 108 (2013)

I Don’t Get No Respect

Employees that participate in or instigate gossip about the company, an employee, or customer will receive disciplinary action….Most people involved in gossip may not intend to do harm, but gossip can have a negative impact as it has the potential to destroy a person’s or organization's reputation and credibility.

UNLAWFUL

Laurus Technical Institute v. Joslyn Henderson, Case 10-CA-093934 (Dec. 11, 2013)

I Don’t Get No Respect

[Employees] will not make negative comments about our fellow team members…[and employees] will not engage in or listen to negativity or gossip.

UNLAWFUL

Hills and Dale Hospital and Danielle Corlis, Case 07-CA-053556 (April 1, 2014)

I Don’t Get No Respect A barista was discharged after he told an assistant

manager “You can go f*** yourself” when the manager asked about the barista’s union button.

The NLRB ruled that Starbucks had fired the barista because of his union activities in violation of the NLRA.

The Seventh Circuit criticized the NLRB for not considering the employee’s use of profanity in front of customers.

The NLRB punted on this issue and found the discharge unlawful on other grounds.

Starbucks, Inc., 360 NLRB No. 134 (June 11, 2014).

I Don’t Get No Respect

Auto salesman yells at the dealership owner that he was “stupid”, a “f***ing crook”, and “an a***hole.”

Dealership owner also warned that if the salesmen was fired, the owner “would regret it.”

NLRB found that employer provoked the employee and his discharge was illegal.

Plaza Auto Ctr., Inc., 360 NLRB No. 117 (May 28, 2014).

Prohibition on disclosing names, addresses, phone numbers, non-company e-mail addresses of other employees and employee lists.

Unlawful

Tiffany & Co., No. 01-CA-111287 (August 5, 2014).

Confidentiality Policies

You also need to protect confidential information when you communicate it.

You should never share confidential information with another team member unless they have a need to know the information to do their job…

Don’t have conversations regarding confidential information in the break room or in any other open area. Never discuss confidential information at home or in public areas.

UNLAWFUL

Target Corporation, 359 NLRB No. 103 (Apr. 26, 2013)

Confidentiality Policies

The National Labor Relations Board says employees have a right to use employer email systems To discuss unions and working conditions During non-working time

Applies to all unrepresented and represented employees

Purple Communications, Inc., No. 21-CA- 095151 (December 11, 2014)

E-MAIL POLICIES

What Should Employers Do Now?

Advise employees their email is monitored and they have no expectation of privacy

Establish a monitoring procedure and protocol

Determine extent to which employees are currently using company equipment for non-work purposes (football pools, etc.)

Train supervisors

NLRB Teams Up ….

OSHA will now notify all complainants who file untimely OSHA whistleblower charges of their right to file a ULP with the NLRB.

Office of General Counsel Memorandum OM 14-60 (May 21, 2014).

Pre-election hearing can be held within 8 days of Union’s filing of Petition.

Election as soon as 10 days after Petition is filed.

Hearing required only on question of appropriateness of unit – i.e., issues related to supervisory status deferred.

Ambush Elections

Takeaways

Review and revise policies. Train your supervisors on Protected Concerted

Activity developments.– Remember: “Section 7 is as broad as your

imagination.” Review business structure/staffing

arrangements. Expect the unexpected.

– Longstanding precedent is no deterrent to the current Board.