National Labor Relations Board (NLRB) Update The Impact of Noel - PowerPoint PPT Presentation

National Labor Relations Board (NLRB) Update The Impact of Noel Canning , Employee Handbook Policies Under Siege, and What’s Ahead SPB Labor & Employment Webinar Series August 13, 2014 Dan Pasternak Lew Clark Mike Hanna

Agenda  NLRB v. Noel Canning - what it held, what it means, and what to expect  NLRB and ALJ decisions addressing employer policies  Workplace Conduct and Behavior  Confidentiality  Dress Codes and Uniforms  Off-Duty Employee Access  Social Media  Key Labor Policy Issues Under NLRB Review squirepattonboggs.com 2

NLRB v. Noel Canning  NLRB issues decision in February 2012 finding that Washington state Pepsi bottler Noel Canning committed unfair labor practices; Noel Canning appeals  Noel Canning’s argument  US Supreme Court issues decision on June 26, 2014 (134 S. Ct. 2550)  President lacked constitutional authority to appoint NLRB members during a 3-day Senate recess in January 2012  Because these recess appointments were invalid, the NLRB had only two validly- appointed members after January 2012  Supreme Court’s 2010 decision in New Process Steel held that the NLRB cannot act without a three-member quorum  Full set of new NLRB members not confirmed until August 2013  The result: all NLRB decisions issued between January 2012 and August 2013 are void (including the decision finding against Noel Canning) squirepattonboggs.com 3

NLRB v. Noel Canning  Some of the key cases invalidated by Noel Canning: - Banner Estrella Medical Center, 358 NLRB No. 93 (July 30, 2012) (confidentiality during employer investigations) - Fresenius USA Manufacturing , 358 NLRB No. 138 (September 19, 2012) (shielding employee from discipline for misconduct while engaged in protected concerted activity) - Costco Wholesale Corp. , 358 NLRB No. 106 (September 7, 2012) (restriction in social media policy against statements defaming, disparaging, or damaging the company held overbroad restriction on Section 7 rights) Karl Knauz Motors, Inc. , 358 NLRB No. 164 (September 28, 2012) (employer’s policy - encouraging courtesy to customers and coworkers held overbroad and unlawful) - WKYC-TV, Gannet Co. , 359 NLRB No. 30 (December 12, 2012) (overturning 50+ years of precedent, held employers must continue to deduct and remit union dues following expiration of a collective bargaining agreement) - Alan Ritchey, Inc. , 359 NLRB No. 40 (December 14, 2012) (NLRB holds for the first time that an employer must bargain with a newly-certified union before imposing discretionary employee discipline during the period before negotiating a first collective bargaining agreement) - Piedmont Gardens , 359 NLRB No. 46 (December 15, 2012) (overruling a 35-year old case, Board holds that employers must provide unions with witness statements obtained during an employer’s investigation of employee misconduct) squirepattonboggs.com 4

NLRB v. Noel Canning  Now what?  NLRB requests remand of certain cases pending before courts of appeal  July 2014 – NLRB “ratifies” all administrative, personnel, and procurement actions taken by improperly constituted Board – but not decisions • Includes several Regional Director appointments • Regional Directors in turn ratify all actions taken by them, including ULP complaints issued and election results certified • Problem solved?  NLRB to reissue decisions • Same old, same old … or from bad to worse? • Example: Don Chavas, LLC dba Tortillas Don Chavas , 361 NLRB No. 10 (August 8, 2014): NLRB noted invalidity of Latino Express , Inc. , 359 NLRB No. 44 (2012), which required employers to gross up back pay awards to cover tax liability and to report back pay earnings to SSA – NLRB “reconsiders” the issue and reaffirms principles as “effectuating the purposes and policies of the Act”  Additional discussion of the constitutional law issues is available at SPB’s Employment Law Worldview blog @ http://bit.ly/1k5RbC3 squirepattonboggs.com 5

Employer Policies under Attack

Employer Policies Under Attack The Governing Standard  Section 7 of the NLRA protects employees who engage in concerted activities for the purpose of collective bargaining or other mutual aid or protection  Protections also apply to employer policies that restrict or impair, or may restrict or impair, the exercise of rights protected by the Act  Lutheran Heritage Village-Livonia , 343 NLRB 646 (2004)  If a rule explicitly restricts protected activity, it is unlawful  If it does not explicitly restrict protected activity, it is unlawful if – • Employees would reasonably construe the language to prohibit Section 7 activity; or • The rule was promulgated in response to union activity; or • The rule has been applied to restrict the exercise of Section 7 rights • Both an objective and a subjective component: did the employees construe the policy to restrict protected activity, and would a reasonably employee interpret it to do so? • Admonition in later cases that, when applying this standard, to review the policy as a whole, and not to parse out individual words and phrases squirepattonboggs.com 7

Workplace Conduct & Behavior Rules Hills and Dales General Hospital , 360 NLRB No. 70 (Apr. 1, 2014)  Policy prohibiting “Negative Comments”  Company’s values and standards of behavior policy challenged  No “negative comments about our fellow team members”  Employees are to “represent [the company] in the community in a positive and professional manner in every opportunity”  Employees “will not engage in or listen to negativity or gossip”  NLRB: each provision violated Section 7  Prohibitions against “negative comments” are per se unlawful  Rule requiring employees to represent the employer in the community “in a positive and professional manner” also unlawful (reversing the ALJ) squirepattonboggs.com 8

Workplace Conduct & Behavior Rules Laurus Technical Institute , 360 NLRB No. 133 (June 13, 2014)  No Gossip Policy  Policy prohibited discussing someone’s personal life when the person is not present, talking about a person’s professional life without his supervisor present, and creating or sharing rumors.  NLRB: too broad; too vague; ambiguous  Interfered with the school’s employees’ ability to exercise their Section 7 rights  Restricted employees from discussing or complaining about terms and conditions of employment squirepattonboggs.com 9

Workplace Conduct & Behavior Rules Hoot Winc d/b/a Hooters of Ontario Mills , JD(ATL)-17-14 (May 19, 2014)  Rules Prohibiting Insubordination and Lack of Respect  Company rule provided that insubordination to a manager or lack of respect or cooperation with fellow employees or guests may result in discipline  ALJ: too broad; too subjective  Chilling effect on the exercise of Section 7 rights  Even the rule prohibiting “disrespect to guests” was too broad and unqualified squirepattonboggs.com 10

Workplace Conduct & Behavior Rules First Transit, Inc. , 360 NLRB No. 72 (April 2, 2014)  Discourteous or Inappropriate Behavior Policy  Prohibition against the use of company property for activities not related to work: unlawful  Prohibition against “poor work habits,” including wasting time, loafing and excessive visiting: unlawful  Prohibition against discourteous or inappropriate attitudes or behavior: unlawful  Prohibition against profane or abusive language that is uncivil, insulting, contemptuous, vicious or malicious: lawful squirepattonboggs.com 11

Workplace Conduct & Behavior Rules Copper River of Boiling Springs, LLC , 360 NLRB No. 60 (Feb. 28, 2014)  Displaying a Negative Attitude  Rule prohibited employees from “displaying a negative attitude” when interacting with coworkers or customers found to be lawful  The rule was limited to negative attitudes that are “disruptive to staff or [have] a negative impact on guests.”  The grain of salt… squirepattonboggs.com 12

Confidentiality Policies Flex Frac Logistics , LLC I and II , 358 NLRB No. 127 (Sep. 11, 2012); 360 NLRB No. 120 (May 30, 2014)  Company required employees to sign one-page employment at-will agreement that in part prohibited employees from releasing “confidential information” which included “ personnel information and documents ”  Employees were prohibited from disclosure of this information to persons “outside of the organization.” Violations could lead to disciplinary action up to and including termination  NLRB: applying Lutheran Heritage standard, policy held over broad and infringement on employees’ Section 7 rights squirepattonboggs.com 13

Confidentiality Policies MCPc, Inc. , 360 NLRB No. 29 (Feb. 6, 2014)  Company handbook policy prohibited employees from dissemination of confidential information within the company such as personal or financial information and threatened disciplinary action up to and including termination  At a team building meeting an employee complained about a heavy workload and that more employees should be hired. In course of discussion, employee mentioned that if the company had not paid one of its new executives $400,000, it could have hired more employees. Soon thereafter, the employee was terminated  NLRB found the policy to be overly broad, and further found the Company violated Section 8(a)(1) when it terminated the employee for violating the overly-broad policy squirepattonboggs.com 14