Developments Before the National Labor Relations Board Gran anit - - PowerPoint PPT Presentation

Gran anit ite State Human man Resour urces Confer eren ence

Prese sented By: y: Mark T. Broth, Esquire re

111 Amherst Street Manchester, NH 03101 603.669.1000

Developments Before the National Labor Relations Board

ELECTIONS

Employee Free Choice Act of 2009 H.R. 1409 (111th)

Would have amended NLRA by:

• Eliminating need for secret ballot election if

a majority of workers signed cards expressing a wish to have a union

– Dubbed “Card Check Elections”

• Requiring employer to begin negotiating with

union within 90 days or be referred to compulsory mediation and binding arbitration, if necessary

• Increasing penalties on employers who

engage in discriminatory practices against workers who are involved in the union Not Enacted

Lamons Gasket Co., 357 NLRB No. 72 (Aug. 26, 2011)

• Overruled Dana Corp., 351 NLRB 434 (2007)

– created a 45-day window in which employees could request a secret ballot election following the voluntary recognition of a union by their employer

• Returned to “recognition bar” rule

– prevents elections for a “reasonable period of time” after voluntary recognition of the union designated by a majority employees

• Defined “a reasonable period of bargaining,

during which the recognition bar will apply, to be no less than 6 months after the parties’ first bargaining session and no more than 1 year.”

Specialty Healthcare and Rehab. Ctr.

• f Mobile, 357 NLRB No. 83

(Aug. 26, 2011)

Switched Burden for Challenging Bargaining Unit: “[I]n cases in which a party contends that a petitioned-for unit containing employees readily identifiable as a group who share a community of interest is nevertheless inappropriate because it does not contain additional employees, the burden is on the party so contending to demonstrate that the excluded employees share an overwhelming community of interest with the included employees.”

Workforce Democracy and Fairness Act: HB 3094

Purpose: Avoid the proliferation of

“micro” bargaining units by-

• Stipulating that “employees will not be

excluded from the unit unless the interests

• f the group sought are sufficiently distinct

from those of other employees to warrant establishment of a separate unit”;

• Establishing criteria to determine whether

employees share a “community of interest”; and,

• Requiring Board to determine appropriate

bargaining unit before election takes place Not Enacted

New NLRB Election Rule

Rule Effective as of April 30, 2012

• Limits Scope of Pre-Election Hearing to

Determining Whether an Election Should be Conducted

• Limits Ability to Submit Post-Hearing Briefs
• Eliminates Pre-Election Appeals and

Associated 25-day Waiting Period

• Limits Interlocutory Appeals to

“Extraordinary Circumstances”

• Establishes Post-Election Procedures

New NLRB Election Rule

Rule Effective as of April 30, 2012

Stated Purpose of New Election Rule: Reduce Unnecessary Litigation Before and After Representation Election Effect of New Election Rule:

• Significantly Shortens Time Between

Election Petition and Election

– Dubbed the “Quickie Election” Rule

• Makes All Board Review of Regional

Directors’ Decisions on Post-Hearing Matters Discretionary

EMPLOYEE SOLICITATION

Employee Rights Notice Posting Rule

Effective Date Postponed Indefinitely

• Requires most private sector employers to

post a notice advising employees of their rights under the NLRA

– Notice must be placed in a conspicuous place, where

• ther notifications and employer rules/policies are

posted, as well as on any internet or intranet that is regularly used by the employees – If 20% of an employer’s workforce speaks another language, employers must post notices in the languages spoken by those employees

Employee Rights Notice Posting Rule

Effective Date Postponed Indefinitely

STATUS OF RULE

• D.C. District Court

– Upheld NLRB’s authority to issue the rule – Struck down provision making it an Unfair Labor Practice for employers to refuse to post the notice

• South Carolina District Court

– Held NLRB posting rule is unlawful

• D.C. Circuit Court of Appeals

– Temporarily enjoined rule from going into effect pending determination of NLRB authority on appeal

Extended Rights of Access Provided to Employees of a Contractor: “[A] property owner may lawfully exclude [off- duty] employees [of its contractor engaged in

• rganized activity] only where the owner is

able to demonstrate that their activity significantly interferes with his use of the property or where exclusion is justified by another legitimate business reason.”

New York New York, LLC, 356 NLRB

• No. 119 (Mar. 25, 2011)

Sheet Metal Workers Int’l Ass’n, 356 NLRB No. 162 (May 26, 2011)

Expanded Ability of Employees of Contractors to Engage in Organizing Efforts:

• Held that displaying a 16-foot tall inflatable

rat and distributing employee leaflets at secondary employer location was not unduly coercive, and thus lawful

GRIEVANCE AND ARBITRATION

Memorandum GC 12-01

Guideline memorandum to NLRB regional offices stating that in cases where employees allege unlawful discrimination or interference with employee rights:

• Deferral to grievance/ arbitration

procedures allowed only if doing so would not require NLRB deferral for more than a year; and,

• Deferral should be rejected where employer

has blocked employee access to dispute resolution procedures

D.R. Horton, Inc., 357 NLRB No. 184 (Jan. 3, 2012)

• Held that employers may not, as a term or

condition of employment, require union or nonunion employee to sign arbitration agreements that “waive [employees’] right to collectively pursue employment related claims in all forums, arbitral and judicial”

• Held that such arbitration agreements also

independently violate Sec. 8(a)(1) if they do not contain an express carve-out allowing employees to file charges with the NLRB or EEOC

Conflicts with United States Supreme Court Decisions

AT&T Mobility v. Concepcion, 131 S.Ct. 1740 (2011)

• Approved the use of class action waivers in

arbitration agreements CompuCredit Corp. v. Greenwood, No. 10- 948, 2012 WL 43514 (Jan. 24, 2012)

• Held that federal statute providing right to

file class action lawsuits did not override the presumption under the Federal Arbitration Act that arbitration agreements should be enforced according to their terms

SOCIAL MEDIA

“Engaged in Protected Activity”

Protected activities are those that relate to the employees terms and conditions of employment

• Ex. Protected Activities:
• Protesting supervisory actions

– Datwyler Rubber and Plastics, Inc., 350 NLRB 669 (2007)

• Making statements related to employee staffing levels where it is

clear from the context that they implicated work conditions

– Valley Hospital Medical Center, 351 NLRB 1250 (2007)

• Ex. Unprotected Activities:
• Protesting over quality of service provided by employer which

has only a tangential relationship to employee terms and conditions

– Five Star Transportation, Inc., 349 NLRB 42 (2007)

“Concerted Activity”

Employee activity is concerted when: “An employee acts with or on the authority of other employees and not solely by and on behalf of the employee himself.” Meyers I, 268 NLRB 493, 497 (1984) “Those circumstances where individual employees seek to initiate or to induce or to prepare for group action.” Meyers II, 281 NLRB 882, 887 (1986)

Social Media and Concerted Activities

Facebook postings found to be protected concerted activity where:

• Motivation of posting is directly related to

upcoming meeting with management;

• Topic of posting relates to job performance,

staffing, and/or other terms and conditions of employment;

• Comments on posting are exchanged between

coworkers

• Motivation of posting is to express the previously

discussed sentiment of the employee group related to concerns over commissions; and/or,

• Topic of posting had previously been brought to the

employer’s attention and thus the posting embodied “truly group complaints”

Social Media and Concerted Activities

Facebook postings found to be not protected concerted activity where they are “individual gripes.”

For example, found not protected where:

• Posting was not discussed with any coworkers
• No coworkers responded to posting, although they may have

been “friends” with the posting employee

• No employee meeting or any attempt to initiate group

action concerning the topic of the posting

• Posting was not an attempt to take employee complaints to

management

• Posting was not an outgrowth of employees’ collective

concerns

• Postings were simply inappropriate and/or offensive

comments not involving protected concerted activities

Work Rules

An employer violates Sec. 8(a)(1) through the maintenance of a work rule if that rule “would reasonably tend to chill employees in the exercise of their Section 7 rights.”

Lafayette Park Hotel, 326 NLRB 824, 825 (1998)

Work Rules

A work rule will be held to “chill employees in the exercise of their Section 7 rights” if:

• The rule explicitly restricts Section 7

protected activities OR

• Upon a showing that:

– (1) employees would reasonably construe the language of the rule to prohibit Section 7 activity; – (2) the rule was promulgated in response to union activity; or – (3) the rule has been applied to restrict the exercise of Section 7 rights

Lutheran Heritage Village-Livonia, 343 NLRB 646, 647 (2004)

Work Rules

Work rules found unlawfully broad by the NLRB include employer prohibitions on:

• Posting pictures of themselves in any media which

depict the company, brand, product, or logo in any way

• Making disparaging comments when discussing the

company, superiors, coworkers, and/or competitors

• Using language or engaging in actions that are

inappropriate or of a general offensive or defamatory nature

• Using any social media that may violate or

compromise the privacy expectations of any person or entity

Work Rules

Remedy: Policies should explicitly define or limit broad terms to ensure that they do not infringe on Section 7 activities

Example Titled: “Media Relations and Press Interviews Policy” Substance:

• Only public affairs office was authorized to make official

external communications

• Employees were expected to maintain confidentiality about

sensitive information

• It was imperative that only one person should speak for the

employer to prevent misinformation

• Employees not allowed to use cameras in store or in parking

lot

• Employees questioned by media were directed to reply that

they are not to comment for employer

Work Rules

“Discipline imposed pursuant to an unlawfully overbroad rule violates the Act in those situations in which an employee violated the rule by (1) engaging in protected employee conduct; or, (2) engaging in conduct that

• therwise implicates concerns

underlying Section 7 of the Act.”

The Continental Group, Inc., 357 NLRB No. 39 (2011)

ENFORCEABILITY OF RECENT NLRB DEVELOPMENTS

Recess Appointments

“The president shall have the power to fill up all vacancies that may happen during the recess of the Senate, by granting commissions, which shall expire at the end of their next session.”

• Article II, Section 2

Recess Appointments

Current NLRB Board

Mark G. Pearce, Chairman

Confirmed by Senate

Brian Hayes

Confirmed by Senate

Sharon Block

Appointed during Recess on Jan. 9, 2012

Terence F. Flynn

Appointed during Recess on Jan. 9, 2012

Richard Griffin

Appointed during Recess on Jan. 9, 2012

RIGHT TO WORK

Right to Work Law in NH: HB 1677

• HB 1677 is as Right-to-Work Bill vetoed by

Governor Lynch last year

• Governor Lynch announced that he would

veto the bill if it were passed by both houses

• NH House voted to passed the Bill in March,

but without the 2/3 majority necessary to

• verturn a gubernatorial veto
• Senate was scheduled to debate bill in April,

but Senate President chose to table the bill for the remainder of the session

CURRENT STATUS: Tabled for the remainder of 2012 legislative session