The Times They Are A-Changin’: The NLRA’s Application to Non-Union Employers Presented by: Lisa M. Vickery Phone: (503) 205-8095 Email: lvickery@fisherphillips.com fisherphillips.com
Obviously 5 Believers: Who Is The NLRB? fisherphillips.com
Who Is The NLRB? • Independent Federal Agency • Purpose: To Interpret and Administer the National Labor Relations Act (NLRA) • Two Main Functions: • “To conduct representation elections and certify the results”; and • “To prevent employers and unions from engaging in unfair labor practices” fisherphillips.com
Who Is The NLRB: The Board And The General Counsel Two Sides to the NLRB • Office of the General Counsel • Investigates and Prosecutes Unfair Labor Practice Charges (“ULPs”) • 26 Regional Offices • Investigates ULPs • Administer representation elections • Five-Member Board • Adjudicates cases • Appointed by the Party in office • Two Democrats • Two Republicans • One member from the political party of the President fisherphillips.com
“Obama Board” 2013 - 2017 Chair R R D D D fisherphillips.com
“Trump Board” Today Chair D * D R R R fisherphillips.com
North Country Blues: What Is The National Labor Relations Act? fisherphillips.com
The National Labor Relations Act (NLRA) Composed of Three Statutes • The Wagner Act of 1935 • Taft Hartley Act of 1947 • Labor Management Reporting and Disclosure Act of 1959 fisherphillips.com
Who Is Covered By The NLRA? All Private Sector Employers who engage in a minimal level of interstate commerce: • Non-retail: $50,000/year • Retail: $500,000/year • Shopping Centers/Office Buildings: • $100,000/year • Based on Gross Volume of Business The Employer need not have unionized employees for the NLRA to apply. fisherphillips.com
It Ain’t Me Babe: The NLRA For Non-Union Workplaces fisherphillips.com
National Labor Relations Act Section 7 (Rights Of Employees) EMPLOYEES SHALL HAVE THE RIGHT: • To self-organize, form, join, or assist labor organizations • To bargain collectively through their chosen representatives • To engage in other concerted activities for the purpose of collective bargaining or other mutual aid or protection; or • To refrain from any or all such activities…. fisherphillips.com
NLRB’s Application Of Section 7 • During the “Obama Board” years, the NLRB dramatically expanded its application of Section 7 • Most notable change: evaluating the lawfulness of handbooks and work rules of non-unionized employers fisherphillips.com
Handbooks And Work Rules Lutheran Heritage , 343 NLRB 646 (2004) A facially neutral work rule is unlawful if employee could reasonably construe it as prohibiting protected concerted activity. • Obama-era NLRB found many common work rules unlawful under Lutheran Heritage : • No profanity or abusive behavior toward co-workers (“workplace civility” rules); • No disclosure of “confidential” information; • No photography or surreptitious audio or video recording in the workplace; • No conducting “personal business” on the employer’s premises; • No making “false, disparaging [or] misleading” statements about the employer online; • Employees must behave in a “positive and professional manner”; and • No unauthorized employee use of the employer’s logos, insignia, and other trademarks. • NLRB also issued General Counsel Memo 15-04 (2015) (“Wendy’s Memo”), which outlined lawful v. unlawful handbook provisions. fisherphillips.com
Tell Me That It Isn’t True: The New Board and New General Counsel fisherphillips.com
New Board, New General Counsel, New “Law” • Board “law” swings to and fro. • Party holding the White House moves the pendulum. • Following Trump’s January 2017 inauguration, the Board had a Republican majority for the first time in 10 years. • Agency bureaucracy is more consistent. • Regional directors, ALJs, and other staff are largely unchanged. • Will continue applying Obama-era precedent. • Until the new GC, the NLRB, or federal courts change it. fisherphillips.com
Who is the NLRB: The Current Board John Ring, William Chairman Emmanuel, Board Member Lauren McFerran, Marvin Kaplan, Board Member Board Member fisherphillips.com
Who Is The NLRB: General Counsel Peter B. Robb Sworn in November 17, 2017 fisherphillips.com
General Counsel Memo 18-02 (Dec. 1, 2017) • Mandatory submission to Advice. • Regional directors must submit certain issues and cases to the Division of Advice prior to taking action. • Including many Obama-era cases that overturned precedent. • Listed examples: • Joint employer standard. • Use of employer’s e-mail. • Common employer handbook rules. • Off-duty access to employer’s property. • Boundaries of protected concerted activity. • Conflicts between NLRA and other statutes’ requirements. fisherphillips.com
Don’t Think Twice, It’s Alright: Recent Changes To The NLRB’s Application Of Section 7 fisherphillips.com
Handbooks And Work Rules The Boeing Co. , 365 NLRB No. 154 (Dec. 14, 2017). Facially neutral work rule is unlawful if, when reasonably interpreted , it potentially would interfere with Section 7 activity. • Overruled Lutheran Heritage • New test—the NLRB will evaluate: • (i) the nature and extent of the potential impact on NLRA rights; and • (ii) legitimate justifications associated with the rule. fisherphillips.com
General Counsel Memo 18-04 (June 6, 2018) • The Boeing Co. decision established three “categories” of policies and rules • Category 1: Rules which are always lawful to maintain because: (i) when reasonably interpreted, the rule does not prohibit or interfere with the exercise of NLRA rights; or (ii) the potential adverse impact on protected rights is outweighed by justifications associated with the rule. • Category 2: Rules that warrant individualized scrutiny as to whether they would prohibit or interfere with NLRA rights • Category 3: Rules which are unlawful to maintain • These new categories created uncertainty, so the General Counsel issued general guidance for the Regional Offices fisherphillips.com
General Counsel Memo 18-04 (June 6, 2018) Category 1: Generally Lawful to Maintain • No recording, no photography rules ; • Civility rules; • Rules against insubordination, non-cooperation, or on-the-job conduct that adversely affects operations; • Disruptive behavior rules; • Rules protecting confidential, proprietary, and customer information or documents; • Rules against defamation or misrepresentation; • Rules prohibiting the use of company logos or intellectual property; • Rules requiring authorization to speak on behalf of the company; and • Rules banning disloyalty, nepotism, or self-enrichment. fisherphillips.com
General Counsel Memo 18-04 (June 6, 2018) Category 2: Warrant Individualized Scrutiny • Depends on the reasoning behind a rule to determine if it can lawfully remain in a handbook. • Examples: • Confidentiality rules broadly encompassing “employer business” or “employee information”; • Rules regarding disparagement or criticism of the employer ; • Rules generally restricting speaking to the media or third parties; and • Rules banning off-duty conduct that might harm the employer. fisherphillips.com
General Counsel Memo 18-04 (June 6, 2018) Category 3: Unlawful To Maintain • Confidentiality rules specifically regarding wages, benefits, or working conditions; and • Rules against joining outside organizations or voting on matters concerning an employee’s employer. If you have one of these policies, Regional Director will issue a Complaint as they are per se unlawful. fisherphillips.com
Mandatory Class and Collective Action Waivers Alternative Entertainment, Inc., 363 NLRB No. 131 (2016). Rule: Required that disputes "relating to ... employment with the company" must be resolved "exclusively through binding arbitration.” • Also required employees to agree that "claim may not be arbitrated as a class action, also called `representative' or `collective' actions" or "otherwise be consolidated or joined with the claims of others." • The Board found this violated the Act because it prevented employees from engaging in concerted legal action, which in turn violated of Section 7. fisherphillips.com
Mandatory Class and Collective Action Waivers Supreme Court overturned this case on May 21, 2018, holding that that class action waivers in employment arbitration agreements do not violate the National Labor Relations Act (NLRA) and are, in fact, enforceable under the Federal Arbitration Act (FAA). Epic Systems Corporation v. Lewis; Ernst & Young, LLP v. Morris; and NLRB v. Murphy Oil USA, Inc. fisherphillips.com
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