the national labor relations act for union and non-union...

GREENBERG TRAURIG, LLP ATTORNEYS AT LAW WWW.GTLAW.COM©2012 Greenberg Traurig, LLP. All rights reserved.

The National Labor Relations Act forUnion and Non-Union Employers

Paul J. Murphy

Justin F. Keith

For questions or authorization to distribute, post or otherwise utilize this material, information orimages, contact: Paul Murphy ([email protected]) or Justin Keith ([email protected]).

1

Introduction

National Labor Relations Act (NLRA)

Signed by FDR in 1935

29 U.S.C. §§ 151-169

By the 1950s, more than 1/3 of all employees belonged tounions

Today, less than 7% of private-sector employees belong to aunion

Two types of cases:

□ Unfair Labor Practice charges alleging a violation of the NLRA byan employer or union

□ Representation cases involving the selection, decertification, orclarification of a labor union’s representation of a group ofemployees

2

Overview of Unfair Labor Practice Cases

The National Labor Relations Act Employee “Bill ofRights”

“Employees shall have the right to self-organization,to form, join, or assist labor organizations, tobargain collectively through representatives oftheir own choosing, and to engage in otherconcerted activities for the purpose of collectivebargaining or other mutual aid or protection, andshall also have the right to refrain from any or allsuch activities…” Section 7 of the NLRA

3

Employer Section 8(c) “Free Speech”Rights

“The expressing of any views, argument oropinion…shall not constitute or be evidence of anunfair labor practice…if such expression containsno threat of reprisal or force or promise ofbenefit.”

4

The National Labor Relations Board Process

Charge and Standing (“any person” can file acharge).

Six month limitations period.

Regional Office investigation.

Possible outcomes.

5

National Labor Relations ActEmployer Unfair Labor Practice Charges

1. Section 8(a)(1). Employer interference withSection 7 rights.

2. Section 8(a)(2). Employer interference withand domination of a labor organization.

3. Section 8(a)(3). Discrimination based on unionactivities.

4. Section 8(a)(4). Discrimination due to resortto or cooperation with the NLRB.

5. Section 8(a)(5). Employer refusal to bargain.


6

NLRA Protections for Non-UnionizedEmployees

7

Protections for Non-Unionized Employees

Section 7 rights extend to all employeescovered by the NLRA

□ Main exception is for “supervisors”

“Employees shall havethe right . . . to engagein other concertedactivities for . . . mutualaid or protection.”

8

Increased Outreach to Non-UnionEmployees

Portion of NLRB web site devoted to protectedactivity in the non-union setting:

□ The law we enforce gives employees the right to acttogether to try to improve their pay and working conditionsor fix job-related problems, even if they aren't in a union. Ifemployees are fired, suspended, or otherwise penalized fortaking part in protected group activity, the National LaborRelations Board will fight to restore what was unlawfullytaken away.

http://www.nlrb.gov/concerted-activity

9

Update on NLRB Notice-Posting Rule

Poster rule Currently not in effect while legalchallenges to the rule arebeing resolved

10

NLRB Notice-posting Rule

Under this Rule, employers must post a “Notice ofEmployee Rights” where other workplace notices arecustomarily posted

The Rule is currently not in effect pending resolution oflegal challenges to the Board’s authority to require theNotice.

The Notice purports to be neutral, but containsinformation 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

12

Protections for Non-Unionized Employees

Unfair Labor Practices

□ Interference with Section 7rights (Section 8(a)(1)violation)

□ Overbroad Policies

□ Discrimination/Retaliation

13

Section 8(a)(1) Overview

Section 8(a)(1) of the NLRA makes it unlawfulfor an employer “to interfere with, restrain, orcoerce employees in the exercise of the rightsguaranteed in section 7.”

In order to be within Section 7, employeeaction must be both concerted and undertakento improve working conditions (mutual aid orprotection)

14

Section 8(a)(1) Overview - Concert

Protection for group action

Attempts to initiate or induce group action

Personal gripes are not protected

Individual action may be protected if action istaken in an effort to stop concerted activity (i.e. a“preemptive strike”). Parexel International, LLC.,356 NLRB No. 82

15

Section 8(a)(1) Overview – Mutual Aid orProtection

Relationship to terms and conditions ofemployment

Broadly construed

Protection extends beyond immediateemployee-employer relationship (“Eastex”)

16

Overbroad Policies

Work rule that “would reasonably tend to chillemployees in the exercise of their Section 7rights” is an unfair labor practice.

Two step inquiry

□ Express restriction on section 7 rights

□ No express restriction, but:

Employees reasonably believe the rule prohibits section 7activity;

Rule was announced in response to union activity; or

Rule as applied restricts section 7 rights

17

At-will employment under attack?

Recent actions by the Board suggest that at-willprovisions in handbooks and employmentagreements may run afoul of Section 7.

Two cases:

□ American Red Cross Blood Services, Arizona Region, 28-CA-023443

□ Hyatt Hotels Corp., 28-CA-061114

18

American Red Cross Blood Services

Handbook contained at-will provision:

□ “I further agree that the at-will employment relationshipcannot be amended, modified or altered in any way.”

ALJ found that:

□ [T]he clause in question premises employment on anemployee’s agreement not to enter into any contract, to makeany efforts, or to engage in conduct that could result in unionrepresentation and in a collective-bargaining agreement, whichwould amend, modify, or alter the at-will relationship. Clearlysuch a clause would reasonably chill employees who wereinterested in exercising their Section 7 rights.

Case settled after ALJ decision issued.

19

Hyatt Hotels Corp. Hyatt’s handbook contained an at-will

provision:

□ I understand that my employment is “at will.”

□ I acknowledge that no oral or written statements orrepresentations regarding my employment can alter myat-will employment status, except for a writtenstatement signed by me and either Hyatt’s ExecutiveVice President/Chief Operating Officer or Hyatt’sPresident.

□ The sole exception to [Hyatt’s ability to modify or deletepolicies] is the at-will status of my employment, whichcan only be changed in a writing signed by me and eitherHyatt’s Executive Vice President/Chief Operating Officeror Hyatt’s President.

Case settled prior to hearing

20

Confidentiality rules in investigations

Banner Health System, 358 N.L.R.B. No. 93

Employer’s HR department used standard formfor conducting interviews as part of internalinvestigations

Form noted that employees should be told notto discuss ongoing investigations

HR frequently instructed employees not todiscuss investigations

21

Banner Health System

Board found that the instruction “viewed incontext, had a reasonable tendency to coerceemployees, and so constituted an unlawfulrestraint of Section 7 rights.”

Board rejected “blanket approach” toprotecting integrity of investigations.

Employer has the burden “to first determinewhether in any give[n] investigation witnessesneed[ed] protection, evidence [was] in dangerof being destroyed, testimony [was] in dangerof being fabricated, or there [was] a need toprevent a cover up.”


22

Recent Emphasis on Social Media Cases

23

Social Networking

Two kinds of unfair labor practice charges insocial media realm:

□ Retaliation for protected, concerted activity

□ Overbroad social media policies

Policies are overbroad if they prohibit, expressly or byapplication, Section 7 protected, concerted activity

Vast majority of cases are being brought againstnon-union employers

24

Overbroad Social Media Policies

Acting NLRB General Counsel has issued several guidancememoranda setting forth his enforcement position on social mediapolicies

A policy will likely be found to be overbroad and unlawful where itcontains any of the following:

□ restrictions on the use of company logos

□ restrictions on identifying the employer and the employee’s affiliation withthe employer

□ prohibitions against posting pictures in uniform or wearing the employer’slogo

□ requirements that the employee state that social media posts are his/herown 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”

25

Specific Examples of Overbroad Social Media Policies(as identified by the Acting General Counsel)

A policy that “prohibited employees from disclosing orcommunicating information of a confidential, sensitive or non-public information concerning the company on or through companyproperty to anyone outside the company without prior approval ofsenior management or the law department.”[1]

A policy prohibiting employees “from posting pictures ofthemselves in any media . . which depicts the Company in any way,including but not limited to a Company uniform, corporatelogo…”[2]

A social media policy prohibiting the “[u]se of company logos,photographs of any Company store, brand, or product, or use ofany other intellectual property.”[3]

[1] Mem. OM 12-31 at 13.

[2] American Med. Response of Conn., Inc., Case No. 34-CA-12576.

[3] Advice Memorandum, Giant Eagle, Inc., Case No. 6-CA-37250, at 2 (June 22, 2011).

26


A policy prohibiting employees from “making disparaging . .. comments when discussing the Company or the employee’ssuperiors, co-workers, and/or competitors.”[1]

A policy prohibiting “[m]aking disparaging comments aboutthe company through any media, including online blogs,other electronic media or through the media.”[2]

A policy stating that employees could not establish orparticipate in a website or social network that disparages,misrepresents or negatively impacts the employer withoutprior consent.[3]

[1] American Med. Response of Conn., Inc., Case No. 34-CA-12576.

[2] See Mem. OM 12-31 at 3-4.

[3] Children’s Hospital of Pittsburgh of UPMC, Case No. 6-CA-37047 (Complaint issuedOct. 29, 2010).

27


A policy prohibiting employees from “identifying themselvesas the Employer’s employees, unless there was a legitimatebusiness need to do so or when discussing terms andconditions in an appropriate manner.”[1]

A policy prohibiting employees from using social media toengage in “unprofessional communication that could“negatively impact the employer’s reputation or interferewith the Employer’s mission or unprofessional /inappropriate communication regarding members of the

Employer’s community.”[2]

[1] See Mem. OM 12-31 at 7.

[2] See Mem. OM 12-31 at 7


28

The NLRB’s First Social Media Decision

The NLRB issued its first decision in a social media casein Costco Wholesale Corp. on September 7, 2012.

Costco involved a challenge to the employer’s socialmedia policy:

□ Any communication transmitted, stored or displayedelectronically must comply with the policies outlined in theCostco Employee Agreement. Employees should be awarethat statements posted electronically (such as [to] onlinemessage boards or discussion groups) that damage theCompany, defame any individual or damage any person’sreputation, or violate the policies outlined in the CostcoEmployee Agreement, may be subject to discipline, up toand including termination of employment.

29

Costco Wholesale Corp (cont.)

Social media policy in Costco did not explicitlyrestrict Section 7 rights.

Board concluded that the policy’s “broadprohibition against making statements that“damage the Company, defame any individual ordamage any person’s reputation” clearlyencompasses concerted communicationsprotesting the Respondent’s treatment of itsemployees.”

30

Costco Wholesale Corp (cont.)

Employer ordered to revise its nationwideemployee handbook to remove the unlawful rules.

Board’s decision suggests—but does not decide—that a disclaimer provision could have effectedthe outcome.

□ Note: the Acting General Counsel has taken the positionthat such disclaimers will not rescue an unlawful policy.This issue will likely be resolved by the Board in a futurecase.

31

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 toour customers, vendors and suppliers, as well as to theirfellow employees. No one should be disrespectful or useprofanity or any other language which injures the image orreputation of the Dealership.

32


NLRB reaches a similar conclusion as in the Costcocase:

□ We find the “Courtesy” rule unlawful because employeeswould reasonably construe its broad prohibition against“disrespectful” conduct and “language which injures theimage or reputation of the Dealership” as encompassingSection 7 activity, such as employees’ protectedstatements—whether to coworkers, supervisors, managers,or third parties who deal with the Respondent—that objectto their working conditions and seek the support of others inimproving them.

33

Social Networking

What social media activity isprotected under the NLRAand what is not?

Several recent ALJdecisions offer guidance foremployers.

Only Board decision offerslittle guidance.

34


The NLRB issued its first decision in a case arisingout of an employee’s termination for social mediaactivity on September 28, 2012.

Two Facebook postings at issue:

□ Post by employee of a photo of a wrecked Range Roveraccompanied 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.”

35


ALJ found that the employee was fired solely forhis post about the Range Rover accident, whichwas not protected:

□ “It was posted solely by [the employee], apparently as alark, without any discussion with any other employee of theRespondent, and had no connection to any of theemployees’ terms and conditions of employment.”

NLRB agreed with the ALJ.

Decision provides guidance regarding the postabout the employer’s promotional event, whichpresents a much closer case.

36

Decisions So Far Offer Limited Guidance

To date, the NLRB has decided only two socialmedia cases:

□ Costco Wholesale Corp. (social media policy case)

□ Knauz Motors, Inc. (termination case and social mediapolicy case)

Memoranda from the Acting General Counsel,along with several ALJ decisions, offers someguidance to employers.

37

Social Networking

Protected Activity: Hispanics United of Buffalo

“Lydia Cruz, a coworker feels that we don’t help our clientsenough at HUB I about had it! My fellow coworkers how do ufeel?”

“What the Hell, we don’t have a life as is, What else can wedo???”“Tell her to come do [my] f***ing job n c if I don’t doenough, this is just dum”“Marianna stop with ur lies about me. I’ll b at HUBTuesday..”

38

Social Networking

Not Protected Activity: Karl Knauz Motors

Facebook photo of a Land Rover that was accidently driven over awall and into a pond at the adjacent dealership (owned by thesame employer) after a test drive.

In the first Facebook firing case to reach the Board, the NLRBagreed with the ALJ that the post “had no connection to any of theemployees’ terms and conditions of employment.”

39

Social Networking

Protected Activity??: Karl Knauz Motors

“I was happy to see that Knauz went ‘All Out’ for the mostimportant launch of a new BMW in years…the new 5 series. A carthat will generate tens in millions of dollars in revenues for Knauzover the next few years. The small 8 oz bags of chips, and the $2.00cookie plate from Sam’s Club, and the semi fresh apples andoranges were such a nice touch…but to top it all off…the Hot DogCart. Where our clients could attain a over cooked wiener and astale bun…”

Because the NLRB concluded that the employee was fired solelyfor the Land Rover post, it did not decide whether the above postwas protected under the Act.

40

Social Networking

Not Protected Activity: Frito-Lay, Inc.

“It’s a Damn shame when ur own boss don’t even care about urhealth. Smh I Damn there had a heart attack on the fukin floor I bethe would let me go home if I was w*$#% I’m not even going to sayit lmao.”

41

Social Networking

Not Protected Activity: Rock Wood Fired Pizza& Spirits

“So I just learned that a fellow coworker/ bartender is a cheater!He has been screwing over our faithful customers! Very nice!”

42

Social Networking

What’s the difference between protected activity andunprotected activity?

The law is still developing

□ Only two NLRB decisions on social media yet: Knauz Motors andCostco. The majority of the current guidance comes frommemoranda from the NLRB’s general counsel and decisions ofAdministrative Law Judges

Based on this guidance, an invitation to multiple employeeswill 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 fineand may be separated by nothing more than another employeepressing the “like” button on Facebook or re-tweeting a comment.

43

Social Networking

“I’m a customer service rep at Phoenix Widgets. Myboss, Roger Widget, is a racist, a liar, and a cheat. Helies on his taxes, he charges minorities twice as muchfor our product, and he made me cancel my vacationlast year to do his work for him. If I were you, I’d buyfrom our competitors, and not even slow down if I sawRoger in the cross walk.”

What’s the verdict –protected activity or not?

44

What’s Next for the NLRB?

The past several years have brought increasedpolitical and public scrutiny on the NLRB

□ Over 600 NLRB decisions invalidated by the Supreme Court’sdecision in New Process Steel, L.P. v. NLRB

□ Both of the NLRB’s rulemaking initiatives have been stalledby adverse decisions by the federal courts

□ NLRB Member Terence Flynn resigned in May amid ethicsallegations

The four-Member Board is currently comprised of threeDemocrats and one Republican

□ The results of the November election will determine the politicalcomposition of the Board for the next four years

45

What’s Next for the NLRB?

Several high-profile cases raising significant legal issues arecurrently pending:

□ Ability of graduate students to organize (NYU)

□ Right of employers to end dues checkoff upon expiration of a CBA(WKYC-TV)

□ NLRB’s D.R. Horton decision invalidating class action waivers ispending before the Fifth Circuit

□ Rulings on pending notice-posting cases and challenge to newelection rules

□ Application of NLRB’s 2 Sisters decision concerning off-siteelections


46

Questions?

the national labor relations act for union and non-union...

Documents